UNNIKRISHNAN. K,KUNNAMPALLY vs. THE ITO WARD 2, TIRUR

The brief facts of the case are that the assessment for the relevant year was in the first instance made on 10/3/2014 at Rs. 2,07,10,622, by including the following incomes to the returned, including agricultural, income of Rs. 6,67,481: 1. Sale of lottery tickets - Rs.1,45,41,362 2. Brokerage paid - Rs. 2,62,640 3. Rent paid - Rs. 4,68,230 4. F.D. interest received - Rs. 17,70,909 (AY : 2011-12) SA No. 11/Coch/2023 Unnikrishnan Kunnampally v. ITO 5. Temporary loan - Rs. 30,00,000 In appeal, the first appellate authority (vide it’s order dated 02/6/2015) allowed relief to the assessee on the first three additions and confirmed the fifth addition, while the fourth addition of rs. 17.71 lacs was modified to rs. 5,87,297. In cross-appeals before the Tribunal, i.e., qua the first and fifth additions, by the Revenue and the assessee respectively, it, vide it’s order dated 22/01/2016, set aside the impugned order qua both the impugned additions, and restored the matter back to the file of the first appellate authority for fresh adjudication. Impending the same, the Assessing Officer (AO) issued notice u/s. 148(1) of the Act on 17/2/2016 in respect of another income of rs. 2,00,000, alleged to have escaped assessment. The assessee admitted the said income in the re-assessment proceedings, resulting in an assessed income of Rs. 1,96,17,840, as under: Total income as per return filed in response to notice u/s 148 Rs. 13,39,182 Add:1. Addition made in the original order u/s 143(3) on a/c. Rs.1,45,41,362 of sale of retail lottery tickets which is set aside by the Hon'ble ITAT to the file of CIT(A) vide order in dtd. 22-01-2016 2. Addition on account of temporary loan Rs. 30,00,000 which is set aside by the Hon'ble ITAT to the file of CIT(A) vide order in ITA No. 455/416/Coch/2015 dtd. 22-01-2016 3. Interest on F.D. as per CIT(A)’s order vide Rs. 5,87,297 Appeal No. ITA-113/Tribunal/CIT/CLT/2014-15 dt. 2-6-2014 Revised total income: Rs.1,94,67,841 Add. Agricultural Income Rs. 1,50,000 Aggregate total income Rs.1,96,17,840 The assessee appealing there-against, the ld. CIT(A) after confirming from the record that the incomes for rs. 145.41 lacs and rs. 30 lacs, were yet to be adjudicated, i.e., as Page | 2 (AY : 2011-12) SA No. 11/Coch/2023 Unnikrishnan Kunnampally v. ITO directed by the Tribunal (vide it’s order dated 22/01/2016), did so per the impugned order. Aggrieved, the assessee is in second appeal before us.

Before us, the assessee’s only grievance was the non-maintainability of the impugned order inasmuch as the first appellate authority had thereby decided the assessee’s outstanding appeal (i.e., No. ITA113/TR/CIT/CLT/2014-15), instituted on 17/4/2014, pending before him in consequence to the Tribunal’s order dated 22/01/2016, which he could not while disposing the appeal No. (not specified), instituted on 19/11/2016, arising out of the reassessment proceedings. The ld. CIT(A) has, in doing so, it was argued by Shri Raj, the learned counsel for the assessee, exceeded his jurisdiction, which was limited to the addition/s, made in reassessment, and thus limited in scope. The only manner, he would continue, in which the two additions surviving the Tribunal’s order dated 22/01/2016, could be decided by the ld. CIT(A), was by issuing a notice in appeal No.113/xxxxx/2014-15. The Revenue would, on the other hand, claim the impugned order to be in order, being only upon allowing due opportunity of hearing to the assessee in the matter.

We have heard the parties, and perused the material on record. 4.1 The assessee’s challenge is misconceived, both on facts and in law. It is not in dispute that at the time of filing the appeal before the ld. CIT(A) – the first appellate authority under the Act, in the second round, i.e., on 19/11/2016, the two additions on which it’s order had been set aside by the Tribunal on 22/01/2016, were pending adjudication by it. The assessee’s grievance is that the exercise of jurisdiction, thus assumed, by the ld. CIT(A), could only be per a separate order, and not per an order disposing the assessee’s appeal in the second round. That is, he ought to have issued a separate notice of hearing qua appeal instituted on 17/4/2014. Would it, one may ask, render it liable to be regarded as non-grant of opportunity of hearing, qua which there is in fact no whisper? Or, would it mean that the ld. CIT(A) ought to have issued two Page | 3 (AY : 2011-12) SA No. 11/Coch/2023 Unnikrishnan Kunnampally v. ITO notices of hearing, i.e., one for appeal dated 17/4/2014 and another for appeal dated 19/11/2016, or mention both the appeal numbers separately in the notice of hearing! This is ludicrous, particularly considering that the assessee having admitted the escaped income in reassessment proceedings, the subject matter of the two appeals is the same. As such, the two additions surviving the Tribunal’s order, pending disposal, were decided, and rightly so, by the ld. CIT(A) vide the impugned order. Disposing thus the outstanding issues common to both the appeals, i.e., arising out of assessment orders dated 10/3/2014 and 19/10/2016, pending before him. Continuing further, the assessee’s appeal against his (re)assessment dated 19/10/2016, it is to be noted, was only in respect of the additions made in the original assessment, and which, strictly speaking, ought to fail his appeal on that score inasmuch as it did not lead to any cause of grievance. Further, the order by the ld. CIT(A), we may add, would be equally valid in law were the issues not common, or so only in part. The procedural requirement of grant of due opportunity of hearing stands observed, and on which, as afore-noted, there is no quarrel or issue. Why, an appellate authority can, as the first appellate authority often does, dispose appeals for several years where raising common issues, even if in part, together. The Tribunal does it all the time, even disposing appeals of different assessees, heard together, where they raise common issues. The only aspect relevant, and on which there is no quarrel, is due allowance of opportunity to the assessee to plead each of the issues taken up for adjudication by the ld. CIT(A).

Moreover the assessee had submitted the details of retail sales of lottery tickets and on submission of the same, the Ld. CIT(A) has deleted the addition made by the Assessing officer. The Ld. CIT(A) has deleted the addition by observing that the estimation can be done only after rejecting the books of account whereas the Assessing officer has given a clear finding that the reply received from the assessee is not found satisfactory which tantamounts to rejection of the reply and the books of account, though in specific, the Assessing officer has not invoked the provisions of section 145(3) of the Act. Regarding the estimation of income by the Assessing officer, no basis of whatsoever kind has been given by the Assessing officer and the Ld. CIT(A) has not given his findings on such estimation which is 25% of 10% of total sales as retail sales computed by the Assessing officer. Accordingly, in the interest of justice, the matter is set aside to the file of the Ld. CIT(A) who will ask for the remand report from the Assessing officer and accordingly, give reasonable opportunity of being heard to the assessee with regard to the audited books of account, details of wholesale and retail sales and the estimation of income and decide the issue de novo, in view of our directions hereinabove. Accordingly, all the grounds of the Revenue are allowed for statistical purposes. Thus the appeal of the Revenue in is allowed for statistical purposes’ 11……14 Qua addition for rs. 30 lacs ‘15. We have heard the rival contentions and perused the facts of the case. The undisputed facts in the present case are that the assessee had not produced loan confirmations before the Assessing officer. However, the details were produced which are part of the assessment order at para 4 at page 3 of the order. It was submitted that Rs.6,46,000/- is the amount brought in to the books of account before the start of the impugned year. The same cannot be the subject matter of the addition in the impugned year. The Assessing officer as well as Page | 6 (AY : 2011-12) SA No. 11/Coch/2023 Unnikrishnan Kunnampally v. ITO the Ld. CIT(A) has not verified the same. As regards confirmations produced by the Ld. Counsel for the assessee before the Ld. CIT(A), it was argued that the same could not be procured during the assessment proceedings and were only procured during the first appellate proceedings. In the interest of justice, the Ld. CIT(A) should have accepted the same as additional evidence and after taking the remand report from the Assessing officer, should have decided the issue but the same has not been done by the Ld. CIT(A). Therefore, in the interest of justice, the issue with regard to the raising of temporary loans amounting to Rs.30 lakhs is set aside to the file of the Ld. CIT(A) who will accept the same as additional evidence under Rule 46A of the Income Tax Rules, 1962 and decide the issue after taking the remand report from the Assessing officer. The assessee is at liberty to produce further evidences or his submissions in support of his claim before the Ld. CIT(A). Accordingly, all the grounds of the assessee are set aside to the file of the Ld. CIT(A) to decide the issue de novo in view of our findings hereinabove. Thus the appeal of the assessee in is allowed for statistical purposes.’ (emphasis, ours) No remand report, he would continue, as required by the Tribunal, was sought by the ld. CIT(A) from the AO in adjudication of the two obtaining additions, so that the matter would need to travel back to his file for the purpose. The parties providing no other assistance in the matter, which without doubt arises out of the impugned order and, accordingly, admitted, i.e., apart from raising an issue germane to adjudication, the hearing was closed with the understanding that the matter would stand restored back to the file of the ld. CIT(A) in case non-compliance of the Tribunal’s order, i.e., in substance and effect, is found. This is as seeking remand report cannot be an empty formality, and is to follow where the assessee had led some evidence in first appeal.

The addition for profit on sale of lottery tickets in retail 6.1 The assessee, in assessment, failing to provide the sales break-up, i.e., between wholesale and retail sale of lottery tickets despite several opportunities, the AO estimated the retail sale – the assessee having been found to be running 8 retail outlets, at 10% of the total sale and, further, bearing a profit element of 25% and, accordingly, made an addition for the said profit at Rs. 1,45,41,362. This was deleted by the ld. CIT(A) on the ground that the AO had not rejected the books of account, not called for by him. The Tribunal, in further appeal, noted that though the AO had not called for the books of account, he had definitely called for the details there-from, which were not produced before the AO. The same, as well as (AY : 2011-12) SA No. 11/Coch/2023 Unnikrishnan Kunnampally v. ITO the audited books, were though produced before the ld. CIT(A), who therefore ought to have admitted the same as additional evidence u/r. 46A of the Income Tax Rules, 1962 (the Rules). It then dealt with the assessee’s plea, which found favour with the ld. CIT(A), i.e., that there had been no rejection of the books of account. It found the same misplaced inasmuch as the AO had given a clear finding that the assessee’s reply was not satisfactory. The AO had, however, while estimating the profit on retail sales (estimated at 10% of the total sales) at 25%, not stated the basis thereof, and which had also not been considered by the ld. CIT(A). In the interest of justice, the matter of estimation of income was set aside for fresh consideration, having regard to the books of account and the details of the wholesale and retail sale, to the file of the ld. CIT(A), who would seek a remand report from the AO. 6.2 The ld. CIT(A), in second round, faced with a non-cooperative attitude by the assessee, found no infirmity in the AO’s estimate of income, which he considers at 10% and 2.5% (or is it 25%) on wholesale and retail sales respectively, even as he actually works out the same at 2.5% each on the entire sale of Rs. 5816.55 lakhs. The bifurcation of wholesale and retail sales was as provided by the assessee, with the purchases having been confirmed from district lottery officer (DFO). There is a clear case of non-application of mind by the ld. CIT(A) in the matter. The AO had estimated only the profit on the retail sale, at 25%, estimating the said sale at 10% of the total sale. He did not disturb the profit on the wholesale sale at all, making an adjustment for the retail profit on finding that the assessee had declared only sale on wholesale basis, while it was running eight retail outlets as well. 6.3 The assessee’s plea that the ld. CIT(A) had, in deciding the matter, not sought a remand report from the AO, as directed by the Tribunal, would need to examined with reference to the facts and circumstances of the case. Our first preliminary observation in the matter is that non-seeking of remand report by the Page | 9 (AY : 2011-12) SA No. 11/Coch/2023 Unnikrishnan Kunnampally v. ITO ld. CIT(A), which the assessee emphasizes, would obtain only where the assessee had furnished some material or explanation subsequent to assessment, not considered in assessment. A prejudice has to be, in the facts and circumstances of the case, shown, and it cannot be regarded as a blanket rule or as an absolute. 6.4 To begin with, when the AO had not, even as observed by the Tribunal itself, sought books of account from the assessee, where is the question of the assessee producing it before the ld. CIT(A) as additional evidence? As regards the information sought by the AO, i.e., the breakup of sales as between the wholesale and retail sale, the same has been in the appellate proceedings. The retail sale, at Rs. 57.79 lacs, is at a gross variance with the AO’s estimate thereof at Rs. 581.65 lacs. The ld. CIT(A) accepting the same, did not accordingly consider it necessary to call for a remand report from the AO in the matter. Though clearly not in conformity with the order by the Tribunal, it could not be a cause of grievance for the assessee, whose data stands accepted by the ld. CIT(A). Proceedings under the Act, a public law, however, are not adversarial proceedings or in the nature of a lis (see: Gadgil (S.S.) v. Lal & Co. [1964] 53 ITR 321 (SC)), and the ld. CIT(A) ought to have sought a remand report in the matter from the AO. This is particularly so considering the wide variation in the retail sale, and the concomitant issue of the credibility of the data, furnished, despite being a part of the audited accounts, after a long delay, raising doubts in the matter. That is, the genuineness or the veracity of the stated figure, which the ld. CIT(A) was, in view of the directions by the Tribunal, bound to admit. Further, the ld. CIT(A) arriving at the same amount of profit, despite a sharp variation in the quantum of the retail sale, again highlights his lack of application of mind, referred to by us earlier (para 6.2). 6.5 The third component in the matrix is the estimation of profit on retail sale, i.e., the profit rate thereon, adopted by the AO at 25%, no basis for which, as rightly observed by the Tribunal, has been stated by the AO. So, however, no claim, Page | 10 (AY : 2011-12) SA No. 11/Coch/2023 Unnikrishnan Kunnampally v. ITO much less evidence, in rebuttal, stands furnished by the assessee, and in fact at any stage, i.e., either before the Revenue, both in the first and second round, or before the Tribunal. It is only when an aspect of the assessment is disputed before an authority, and with some materials, that it, observing the procedural aspect in the matter, as r. 46A, seek remand report from the lower authority who did not have the benefit of the said material while framing the assessment or in adjudication. The Tribunal could not have, while adjudicating the matter in the first round, predict what materials would be furnished by the assessee in the set aside proceedings. Accordingly, it, in the interest of justice, remanded the matter to the file of the ld. CIT(A) for a de novo consideration, considering it proper to remove the bar of r. 46A, to enable consideration of the evidences that may be led by the assessee without any procedural constraints, i.e., by the first appellate authority, who therefore, ought to in fairness seek the view of the AO thereon as well, as indeed to verify as well as adduce evidence/s in rebuttal. This explains the Tribunal’s reference to remand report from the AO. With no material, i.e., qua profit on sales, however, having been furnished before him by the assessee, the ld. CIT(A), in the absence of any rebuttal, adopts the AO’s profit estimate on the retail sale. What one wonders, then, is the assessee’s grievance, who has all through been non- cooperative, much less furthering his case with any material and explanations. No grievance has been stated before us; the assessee, rather, as before the assessing authority earlier, avoiding hearings before the ld. CIT(A). In the absence of any material/evidences before the ld. CIT(A), the assessee’s argument of no proper enquiry by the ld. CIT(A) is a false statement, without any substance, which, for its acceptance would require attending the proceedings before the ld. CIT(A), not to speak of not furnishing any explanation/material. Continuing further, the AO has not, even as found by the ld. CIT(A), assumed the entire sale as retail sale, and (AY : 2011-12) SA No. 11/Coch/2023 Unnikrishnan Kunnampally v. ITO applied profit rate thereon, as has been again wrongly contended by the assessee. The profit rate has been applied only on the retail sale as estimated by him. So, however, the purchase of lottery tickets, which is from the Government of Kerala (in the Department of Directorate of Lottery), where, one may ask, is the question of estimating profit thereon, i.e., in view of the books bearing the necessary information on sale (revenue) and related cost. To this extent we are not in agreement with the ld. CIT(A), an aspect also referred to by the Tribunal. In fact, his validating the profit estimate on retail sale by the AO, who was constrained for want of information, and despite a vast variation in the quantum of retail sale, which itself should have put him on guard, causing its verification, betrays his complete non-application of mind, and a serious omission in not seeking remand. The ld. CIT(A) ought to have met the mandate of the Tribunal, as indeed address the issue of quantum of retail profit, at large before him, basing his finding on some material inasmuch as it cannot be de hors any. Non-cooperation by the assessee in the matter would sure entitle him to make an estimate, but the same ought to be an informed one, based on some credible material/information, and cannot be sans any.

Addition qua temporary loans: The second issue on which the Tribunal had restored the matter back to the ld. CIT(A), with near similar instructions, is qua the addition on temporary loans for Rs.30 lakhs, and which, as by the AO, came to be confirmed by him in the absence of any improvement in his case being effected by the assessee before him. In doing so, the ld. CIT(A), however, has allowed the assessee, in the interest of justice, credit for Rs.6.46 lakhs, claimed by the assessee as brought forward from an earlier year, without though adducing any material in support. How, we wonder, that promote the cause of justice, unless it is construed as a one-way street? Even as observed for the first issue, the same is also in contravention of the Tribunal’s directions. Relief has been allowed by the ld. CIT(A) as a measure of expediency, for which there is no warrant in law; the addition being evidence-based, and on which the assessee had earlier not advanced his case in any manner, as was admitted before the Tribunal, which, accordingly, vide para 15, allowed liberty thereto to do so. No material being adduced in the (AY : 2011-12) SA No. 11/Coch/2023 Unnikrishnan Kunnampally v. ITO second round, the matter yet goes back to the ld. CIT(A) for causing verification of the assessee’s claim for rs. 6.46 lacs by the AO. We decide accordingly.

We are thus in agreement with the assessee’s alternate plea that for both the issues at large before him, the ld. CIT(A) has not decided the same in keeping with the directions by the Tribunal per it’s order dated 22/01/2016, i.e., in substance. Rather, as the facts and circumstances show, a remand to the AO was required even in the absence of any specific direction/s to that effect. His order cannot have our approval, and is accordingly set aside for adjudication afresh. We, further, having decided the assessee’s appeal, his stay application is rendered infructuous.