High Court Kerala High Court

Sri. Jose Cyriac vs The Commissioner Of Income Tax on 22 October, 2010

Kerala High Court
Sri. Jose Cyriac vs The Commissioner Of Income Tax on 22 October, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

ITA.No. 76 of 2010()


1. SRI. JOSE CYRIAC,
                      ...  Petitioner

                        Vs



1. THE COMMISSIONER OF INCOME TAX,
                       ...       Respondent

                For Petitioner  :SRI.P.BALAKRISHNAN (E)

                For Respondent  :SRI.JOSE JOSEPH, SC, FOR INCOME TAX

The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice K.SURENDRA MOHAN

 Dated :22/10/2010

 O R D E R
                                                                                    C.R.
                     C.N.RAMACHANDRAN NAIR &
                          K.SURENDRA MOHAN, JJ.
                ....................................................................
          I.T. Appeal Nos.76 of 2010, 1168, 684 & 777 of 2009
                ....................................................................
                Dated this the 22nd day of October, 2010.

                                       JUDGMENT

Ramachandran Nair, J.

Connected appeals, one filed by the assessee and three filed by

the Revenue relate to the assessments of relatives and related concerns

pursuant to search made under Section 132 and survey made under

Section 133A of the Income Tax Act (hereinafter called “the Act”). We

have heard Senior counsel Sri.P.K.R.Menon appearing for the Revenue

and Adv. Sri.P.Balakrishnan appearing for the assessees.

2. The facts leading to the controversy are the following. The

following business concerns generally known as Carbo Group have

their office in Carbo House, Old Railway Station Road, Cochin-18:

1. Carbographics Pvt. Ltd.

2. Carbo Colour Ltd.

3. Carbo Aquamarine Exports Pvt. Ltd.

4. Bethal Chemical Industries P. Ltd.

ITA No.76/2010 & conn. 2

5. Kurian’s Ink and Chemicals Ltd.

6. Jagannath Aqua Culture Tuticorin P. Ltd.

7. M/s.K.C.Thomas & Co.

8. M/s.Carbo Chemical Industries

9. M/s.Jose Kurian & Sons

The partners of the firms and directors of the Companies are admittedly

brothers by name Jose Cyriac, Jose Kurian, son of one of the partners

by name P.C. Joy and other family members. Suspecting suppression

and concealment of income by the partners and the business concerns,

the Director of Income Tax (Investigation) issued search warrants in

Form 45 showing the places to be searched as the group head office of

“Carbo Group of Conerns” specifically showing their office address

and stating in the very same warrant the name and residential address

of the partner to be searched. Similarly search warrant was issued in

the case of each and every partner/director of the business concerns.

Based on the search warrants, search and survey operations are carried

out and all the assessees were called upon to file returns of undisclosed

income. All the assessees filed returns without any contest about the

ITA No.76/2010 & conn. 3

validity of the assessments initiated pursuant to search and survey.

Assessments completed were challenged in first appeal before the

Commissioner of Income Tax (Appeals) wherein also the assessees did

not contest the validity of the assessments on the ground that search

was not conducted in accordance with the provisions of Section 132 of

the Act or for any defect in the search warrants issued. The CIT

(Appeals) while considering the appeals did not have any opportunity

to consider the validity of assessments on the ground of any omission

or mistake or irregularity in the search warrants issued. The only

contention raised by all the assessees in first appeals was that assessees

were not given sufficient opportunity by the Assessing Officer to raise

their objections against the income determined. The Commissioner

(Appeals) upheld the claim of the assessees that sufficient opportunity

was not given to raise objection against the proposal for assessment

and so much so, he set aside all the assessments and remanded the

cases to the Assessing Officer for fresh adjudication. The department

challenged the orders of the Commissioner of Income Tax (Appeals)

before the Tribunal. The contention of the Revenue before the

ITA No.76/2010 & conn. 4

Tribunal was that the assessees after receipt of notices from the

Assessing Officer took ten months’ time to file even returns and,

therefore, the assessees cannot complain that they were not given

sufficient time by the Assessing Officer before making assessments.

Even though pursuant to CIT (Appeal)’s orders in the first round of

appeals some of the assessments were revised during the pendency of

departmental appeals before the Tribunal, the Tribunal later upheld the

claim of the department that delay in completion of assessments is

more attributable to assessees who took ten months’ time to file the

returns and such returns were filed on the verge of expiry of time limit

for completion of assessments, set aside the orders of CIT (Appeals)

and the matter was remitted back to the CIT (Appeals) for

consideration of the appeal on merits i.e. on the income determined

based on materials gathered in search and survey.

3. When the appeals were taken up by the CIT (Appeals) after

remand, the assessees for the first time raised a contention that the

assessments were invalid for the reason that search warrant was issued

in the name of “Carbo Group of concerns” who are not assessees and so

ITA No.76/2010 & conn. 5

much so, the search conducted under Section 132 is invalid which

affects the validity of assessments. In fact, the appeals were restored to

the Commissioner of Income Tax (Appeals) by the Tribunal with a

specific direction to consider the assessments on merit. In other words,

the validity of assessments on ground of alleged irregularity in the

search warrant issued under Section 132 was not questioned in the first

round of appeals which reached upto the Tribunal. Even though

remand order issued by the Tribunal did not authorise the CIT

(Appeals) to consider the validity of assessments on the alleged ground

of irregularity in the search, the Commissioner still proceeded to

consider the assessees’ contention in regard to validity of search. The

CIT (Appeals) accepted the contention of the assessees that the search

carried out with warrant issued in the name of “Carbo Group of

concerns” was an invalid search and consequently assessments were

cancelled by him. When the Revenue took up the matter in appeals

before the Tribunal, three appeals were heard and decided by one

Bench of the Tribunal and the last appeal was heard by a different

Bench which took a view entirely different from the view taken by the

ITA No.76/2010 & conn. 6

earlier Bench. In other words, both the Benches of the Tribunal issued

divergent orders with regard to validity of assessments. Therefore, we

have to only consider which order of the Tribunal is right. We notice

that the later decision was rendered by the Tribunal in the order

produced in I.T.A. No.76/2010 which is the appeal filed by the assessee

wherein the Tribunal has explained how the other Bench order of the

Tribunal is not tenable. Therefore, we proceed to consider the said

order issued by the Tribunal in I.T.A. No.207/Coch/2005 pertaining to

the assessment of one of the partners Sri.Jose Cyriac.

4. Counsel appearing for both sides have referred to copy of the

warrant issued in Form 45 produced in all the cases. We notice from

the warrant issued in the case of assessee in I.T.A. No.76/2010 that the

authorisation was to search the office of “M/s.Carbo Group of

Concerns, Carbo House, 40/168, Old Railway Station Road, Cochin-

18” and also the residence of the appellant-assessee Jose Cyriac,

Panamkuzhakal House, SRM Road, Cochin-18. On going through the

other warrants produced in court, we notice that in all the warrants

issued under Section 132 of the Act the place authorised to be searched

ITA No.76/2010 & conn. 7

is the Group Head Office of the business concerns under the control of

all the assessees and the residence of the partners named in the warrant.

The first question to be considered is in the second round when the

appeals were restored to the CIT (Appeals) by the Tribunal, whether

the Commissioner (Appeals) was entitled to consider the question of

validity of assessments based on the irregularity in the warrant alleged

by the assessees. We find force in the contention of the counsel for the

Revenue and the findings of the Tribunal in their order challenged in

I.T.A. No.76/2010 that the CIT (Appeals) while considering the

appeals after remand by the Tribunal should consider the appeals based

on the directions contained in the Tribunal’s order. It is to be noted that

the assessees never contested the validity of the assessments on the

ground of alleged irregularity in the warrant issued in the first round of

appeal before the CIT (Appeals). In the second stage when the

Revenue filed appeals before the Tribunal against the orders of the CIT

(Appeals) remanding the cases, though assessees filed cross objection

challenging the validity of the assessments, the Tribunal did not

consider the same because the same did not arise from orders of the

ITA No.76/2010 & conn. 8

CIT (Appeals) challenged before the Tribunal. In other words, the

Tribunal while remanding the cases did not allow the assesees to raise

an issue on the validity of assessments on ground of alleged defects in

the warrant issued which was not the subject matter of first appeals

filed before the CIT (Appeals). Admittedly the remand orders issued

by the Tribunal had become final and in the remand order Tribunal

neither considered the validity of assessments nor included the same

within the scope of remand for the CIT (Appeals) to consider the same

when the matter reach him a second round after remand by the

Tribunal. We, therefore, uphold the findings of the Tribunal in the

order challenged in I.T.A. No.76/2010 that the CIT (Appeals) had no

jurisdiction to consider the validity of the assessments and he was

authorised to consider only the assessment on merits i.e. about the

income determined in assessment.

5. Even though we have upheld the order of the Tribunal on the

lack of jurisdiction of the CIT (Appeals) to consider validity of

assessments after remand by the Tribunal, both sides argued merits on

the validity of the assessments as well. After verifying the entries in

ITA No.76/2010 & conn. 9

the copies of search warrants produced, we have already noticed that in

all the warrants the name of the assessees and the residential address of

the assessees are given as place to be searched besides the Head Office

of the Carbo group of concerns which was also authorised to be

searched under the same warrant. In our view, there is nothing wrong

in authorising search of a group of concerns by a warrant issued under

Section 132 of the Act. We have already stated in the beginning of the

judgment the names of the firms and the companies whose Head Office

address is shown in every warrant for search. Very many business

concerns which are assessed after search have in their name, the name

“Carbo” and “Carbo” appears to be the common name forming part of

the name of various business concerns of the related assessees.

Assessees do not dispute that the address of the Head Office of the

business concerns shown is not correct. Admittedly all the assessees

have their Head Office in the same building, the address of which is

fully given in the warrant. Besides the name of the group shown as

Carbo Group of concerns in the warrant, every warrant contains the

address of residential house of the assessee to be searched. In fact, it is

ITA No.76/2010 & conn. 10

admitted that based on the search warrant issued the Head Office of the

business concerns and the residences of the partners/directors were

searched and documents and records were recovered. Assessees have

not chosen to challenge the validity of assessments on the allegation of

defect or irregularity in the warrant issued either before the Assessing

Officer or in first round of appeals and they have chosen to raise such a

contention after remand before the CIT (Appeals) for the first time.

We are in complete agreement with the finding of the Tribunal in their

order challenged in I.T.A. No.76/2010 that the CIT (Appeals) has no

jurisdiction to entertain such a contention. Further, on merits also, we

find no substance in the allegation of the assessees that the warrant is

defective. In our view, the warrants issued are free from the defect

alleged by the assessees. What is required to be stated in the warrant is

precise details about the assessees and the persons to be searched which

are contained in the warrants issued in these cases because the Group

Head Office of all the business concerns and the residence of the

persons in charge of business namely, partners and directors of the

business concerns, were authorised to be searched. We, therefore, find

ITA No.76/2010 & conn. 11

no merit in the assessees’ challenge against the validity of assessments.

For the reasons stated above, we allow the Revenue’s appeals namely,

I.T.A. Nos.684, 777 and 1168 of 2009 by vacating the orders of the

Tribunal. Since the Tribunal has decided the merits on the additions in

the order challenged in I.T.A. No.76/2010, the said appeal filed by the

assessee is dismissed. So far as the other appeals are concerned, since

neither the CIT (Appeals) nor the Tribunal has considered the

assessees’ challenge against the determination of income and additions

made, the matter will stand remanded to the CIT(Appeals) for decision

on merits i.e. pertaining to the income assessed based on the orders of

remand issued by the Tribunal in the first round of appeals.

C.N.RAMACHANDRAN NAIR
Judge

K.SURENDRA MOHAN
Judge

pms