Malabar Cements Limited vs Assistant Commissioner Of Income-Tax
2024 Latest Caselaw 12494 Ker

Kerala High Court

Malabar Cements Limited vs Assistant Commissioner Of Income-Tax on 21 May, 2024

Author: A.K.Jayasankaran Nambiar

Bench: A.K.Jayasankaran Nambiar

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
      THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
                                  &
           THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
     TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
                        ITA NO. 8 OF 2023
APPELLANT/APPELLANT

            MALABAR CEMENTS LIMITED
            AGED 54 YEARS
            WALAYAR, PUDUSSERY EAST, PALAKKAD
             (PAN - AABCM5814C), PIN - 678624
            BY ADVS.
            ABRAHAM JOSEPH MARKOS
            V.ABRAHAM MARKOS
            ISAAC THOMAS
            P.G.CHANDAPILLAI ABRAHAM
            ALEXANDER JOSEPH MARKOS
            SHARAD JOSEPH KODANTHARA
            JOHN VITHAYATHIL
            AIBEL MATHEW SIBY


RESPONDENT/RESPONDENT

            ASSISTANT COMMISSIONER OF INCOME-TAX
            PALAKKAD, PIN - 678001

            BY ADVS.
            KEERTHIVAS GIRI
            SC-P.G.JAYASHANKAR.


        THIS INCOME TAX APPEAL HAVING COME UP FOR ADMISSION
ON     21.05.2024,   ALONG   WITH     ITA.11/2023,   12/2023   AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 ITA Nos.8,11,12 and 13 of 2023
                                   2




            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
    THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
                                    &
          THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
  TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
                           ITA NO. 11 OF 2023
APPELLANT/APPELLANT

             MALABAR CEMENTS LIMITED
             AGED 54 YEARS
             WALAYAR, PUDUSSERY EAST, PALAKKAD (PAN -
             AABCM5814C)., PIN - 678624

             BY ADVS.
             ABRAHAM JOSEPH MARKOS
             V.ABRAHAM MARKOS
             ISAAC THOMAS
             P.G.CHANDAPILLAI ABRAHAM
             ALEXANDER JOSEPH MARKOS
             SHARAD JOSEPH KODANTHARA
             JOHN VITHAYATHIL
             AIBEL MATHEW SIBY


RESPONDENT/RESPONDENT

             ASSISTANT COMMISSIONER OF INCOME-TAX
             PALAKKAD, PIN - 678001

             BY ADVS.
             ADV. P.G. JAYASHANKAR PGJ
             KEERTHIVAS GIRI


       THIS INCOME TAX APPEAL HAVING COME UP FOR ADMISSION
ON 21.05.2024, ALONG WITH ITA.8/2023 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 ITA Nos.8,11,12 and 13 of 2023
                                   3




            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
    THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
                                    &
          THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
  TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
                           ITA NO. 12 OF 2023
APPELLANT/APPELLANT

             MALABAR CEMENTS LIMITED
             WALAYAR, PUDUSSERY EAST, PALAKKAD (PAN -
             AABCM5814C), PIN - 678624
             BY ADVS.
             ABRAHAM JOSEPH MARKOS
             V.ABRAHAM MARKOS
             ISAAC THOMAS
             P.G.CHANDAPILLAI ABRAHAM
             ALEXANDER JOSEPH MARKOS
             SHARAD JOSEPH KODANTHARA
             JOHN VITHAYATHIL
             AIBEL MATHEW SIBY


RESPONDENT/RESPONDENT

             ASSISTANT COMMISSIONER OF INCOME-TAX
             PALAKKAD., PIN - 678001

             BY ADV KEERTHIVAS GIRI
             SC SRI.P.G JAYASHANKAR


       THIS INCOME TAX APPEAL HAVING COME UP FOR ADMISSION
ON 21.05.2024, ALONG WITH ITA.8/2023 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 ITA Nos.8,11,12 and 13 of 2023
                                   4




            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
    THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
                                    &
          THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
  TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
                           ITA NO. 13 OF 2023
APPELLANT/APPELLANT

             MALABAR CEMENTS LIMITED
             AGED 54 YEARS
             WALAYAR, PUDUSSERY EAST, PALAKKAD
             (PAN- AABCM5814C), PIN - 678624
             BY ADVS.
             ABRAHAM JOSEPH MARKOS
             V.ABRAHAM MARKOS
             ISAAC THOMAS
             P.G.CHANDAPILLAI ABRAHAM
             ALEXANDER JOSEPH MARKOS
             SHARAD JOSEPH KODANTHARA
             JOHN VITHAYATHIL
             AIBEL MATHEW SIBY


RESPONDENT/RESPONDENT

             ASSISTANT COMMISSIONER OF INCOME-TAX
             PALAKKAD, PIN - 678001

             BY ADVS.
             ADV. P.G. JAYASHANKAR
             KEERTHIVAS GIRI


       THIS INCOME TAX APPEAL HAVING COME UP FOR ADMISSION
ON 21.05.2024, ALONG WITH ITA.8/2023 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 ITA Nos.8,11,12 and 13 of 2023
                                     5




                            JUDGMENT

============

Dated this the 21st day of May, 2024

[ITA Nos.8/2023, 11/2023, 12/2023, 13/2023 ]

Dr. A.K.Jayasankaran Nambiar, J.

In all these appeals the appellant/assessee-Malabar

Cements Ltd impugns the order dated 12.12.2022 of the

Income Tax Appellate Tribunal, Cochin Bench for the

assessment years 2011-12, 2012-13, 2016-17 and 2017-18.

2. The learned Senior Counsel appearing on behalf of

the appellant points out that these appeals have essentially to

be remanded back to the Appellate Tribunal for a decision on

merits, since the Appellate Tribunal in the impugned order has

not considered the contentions of the assessee on the merits of

the claim for depreciation on spare parts solely because,

according to the Tribunal, there was no evidence produced by

the assessee in support of its claim for depreciation. It is the ITA Nos.8,11,12 and 13 of 2023

submission of the learned Senior Counsel that the evidence to

support the contentions of the appellant/assessee on merits

was in fact produced before the Tribunal through an e-mail

sent from the office of the Chartered Accountant (authorised

representative of the appellant) on 02.12.2022, a copy of

which e-mail, together with the notes on submissions, is

produced along with these appeals as Annexure E.

3. The learned Senior Counsel further points out that it

is apparent from a reading of the impugned order of the

Tribunal that the members of the Tribunal did not have the

occasion to go through the said evidence as it was not placed

before them. He therefore prays that the impugned order of

the Tribunal be set aside on the issue relating to the claim for

depreciation, and the matter remanded to the Tribunal for a

fresh consideration on merits in the light of the evidence that

was in fact produced before the Tribunal.

4. We have heard Sri.P.G. Jayashankar, the learned

Standing Counsel for the Income Tax Department. ITA Nos.8,11,12 and 13 of 2023

5. On a consideration of the rival submissions, we are of

the view that in as much as the Appellate Tribunal did not

consider the claim for the appellant for depreciation on merits

by citing the non production of evidence by the appellant as a

reason for not discussing the matter on merits, and we find

that as a matter of fact the evidence supporting the claim for

depreciation had actually been filed before the Tribunal

through Annexure E e-mail which is produced before us in

these appeals, the ends of justice would require as to remand

the matter back to the Tribunal for a fresh consideration of the

claim for depreciation made by the appellant on merits after

considering the said evidence produced by the appellant.

5. Thus, without going into the merits of the case before

us and without answering the questions of law raised in these

appeals, we set aside the common order of the Appellate

Tribunal on the issue of depreciation for the various

assessment years aforementioned, and remand the said issue

for fresh consideration by the Tribunal. The Appellate Tribunal

shall pass fresh orders in the matter, after considering the

evidence produced by the appellant before it, within three ITA Nos.8,11,12 and 13 of 2023

months from the date of receipt of a copy of this judgment. To

enable the Appellate Tribunal to pass fresh orders without any

delay, the appellant is also directed to furnish a fresh set of the

documents produced along with Annexure-E e-mail for

consideration before the Tribunal within two weeks from the

date of receipt of a copy of this judgment. We make it clear

that the other issues considered by the Tribunal, and which

are not impugned in these appeals, shall be treated as finally

decided by the common order of the appellate tribunal

impugned in these appeals.

The Income Tax Appeals are disposed as above.

Sd/-

DR. A.K.JAYASANKARAN NAMBIAR JUDGE

Sd/-

SYAM KUMAR V.M. JUDGE

smm ITA Nos.8,11,12 and 13 of 2023

PETITIONER ANNEXURES

Annexure A TRUE COPY OF ASSESSMENT ORDER DATED 28.02.2014 OF THE ASSESSING OFFICER Annexure B TRUE COPY OF APPEAL DATED 21.03.2014 FILED BY THE APPELLANT BEFOR THE COMMISSIONER OF INCOME TAX (APPEALS), COCHIN Annexure C TRUE COPY OF THE ORDER DATED 11.10.2021 OF THE COMMISSIONER OF INCOME TAX (APPEALS), COCHIN Annexure D TRUE COPY OF THE SECOND APPEAL DATED 06.12.2021 FILED BY THE APPELLANT BEFORE THE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, COCHIN. Annexure E TRUE COPY OF THE E-MAIL DATED 02.12.2022 ALONG WITH PAPER BOOK CONTAINING ANNEXURES SENT BY M/S. VARMA & VARMA, CHARTERED ACCOUNTANTS OF THE APPELLANT.

Annexure E               ANNEXURE E - PART 2
Annexure F               IMPUGNED ORDER DATED 09.12.2022 OF THE

INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, COCHIN IN ITA NO. 255/COCH/2021 FOR ASSESSMENT YEAR 2011-12 ITA Nos.8,11,12 and 13 of 2023

PETITIONER ANNEXURES Annexure A TRUE COPY OF ASSESSMENT ORDER DATED 22.11.2018 OF THE ASSESSING OFFICER Annexure B TRUE COPY OF APPEAL DATED 20.12.2018 FILED BY THE APPELLANT BEFOR THE COMMISSIONER OF INCOME TAX (APPEALS), COCHIN Annexure C TRUE COPY OF THE ORDER DATED 11.10.2021 OF THE COMMISSIONER OF INCOME TAX (APPEALS), COCHIN Annexure D TRUE COPY OF THE SECOND APPEAL DATED 06.12.2021 FILED BY THE APPELLANT BEFORE THE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, COCHIN. Annexure E TRUE COPY OF THE E-MAIL DATED 02.12.2022 ALONG WITH PAPER BOOK CONTAINING ANNEXURES SENT BY M/S. VARMA & VARMA, CHARTERED ACCOUNTANTS OF THE APPELLANT.

Annexure F TRUE COPY OF THE ORDER DATED 09.12.2022 OF THE APPELLATE TRIBUNAL, COCHIN BENCH, COCHIN IN ITA NO. 257/COCH/2021 FOR ASSESSMENT YEAR 2016-17 ITA Nos.8,11,12 and 13 of 2023

PETITIONER ANNEXURES Annexure A TRUE COPY OF ASSESSMENT ORDER DATED 27.03.2015 OF THE ASSESSING OFFICER Annexure B TRUE COPY OF APPEAL DATED 23.04.2015 FILED BY THE APPELLANT BEFOR THE COMMISSIONER OF INCOME TAX (APPEALS), COCHIN Annexure C TRUE COPY OF THE ORDER DATED 11.10.2021 OF THE COMMISSIONER OF INCOME TAX (APPEALS), COCHIN Annexure D TRUE COPY OF THE SECOND APPEAL DATED 06.12.2021 FILED BY THE APPELLANT BEFORE THE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, COCHIN. Annexure E TRUE COPY OF THE E-MAIL DATED 02.12.2022 ALONG WITH PAPER BOOK CONTAINING ANNEXURES SENT BY M/S. VARMA & VARMA, CHARTERED ACCOUNTANTS OF THE APPELLANT.

Annexure F TRUE COPY OF THE ORDER DATED 09.12.2022 OF THE APPELLATE TRIBUNAL, COCHIN BENCH, COCHIN IN ITA NO. 256/COCH/2021 FOR ASSESSMENT YEAR 2012-13 ITA Nos.8,11,12 and 13 of 2023

PETITIONER ANNEXURES Annexure A TRUE COPY OF ASSESSMENT ORDER DATED 05.12.2019 OF THE ASSESSING OFFICER Annexure B TRUE COPY OF APPEAL DATED 01.01.2020 FILED BY THE APPELLANT BEFOR THE COMMISSIONER OF INCOME TAX (APPEALS), COCHIN Annexure C TRUE COPY OF THE ORDER DATED 25.03.2021 OF THE COMMISSIONER OF INCOME TAX (APPEALS), NATIONAL FACELESS APPEAL CENTRE DELHI Annexure D TRUE COPY OF THE SECOND APPEAL DATED 23.06.2021 FILED BY THE APPELLANT BEFORE THE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, COCHIN. Annexure E TRUE COPY OF THE E-MAIL DATED 02.12.2022 ALONG WITH PAPER BOOK CONTAINING ANNEXURES SENT BY M/S. VARMA & VARMA, CHARTERED ACCOUNTANTS OF THE APPELLANT.

Annexure F TRUE COPY OF THE ORDER DATED 09.12.2022 OF THE APPELLATE TRIBUNAL, COCHIN BENCH, COCHIN IN ITA NO. 71/COCH/2021 FOR ASSESSMENT YEAR 2017-18 ITA Nos.8,11,12 and 13 of 2023