IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.VINOD CHANDRAN TUESDAY, THE 15TH NOVEMBER 2011 / 24TH KARTHIKA 1933 ITA.No. 1070 of 2009() ---------------------- AGAINST ORDER DATED 31/01/2008 IN ITA.133/2004 of I.T.A.TRIBUNAL,COCHIN BENCH .................... APPELLANT/RESPONDENT/REVENUE ------------------------------------- THE COMMISSIONER OF INCOME TAX, COCHIN. BY ADV. SRI.P.K.R.MENON,SR.COUNSEL, GOI(TAXES) SRI.JOSE JOSEPH, SC, FOR INCOME TAX RESPONDENT(S): APPELLANT/ASSESSEE --------------------------------- SICILIA HOTELS (P) LTD, THODUPUZHA. ADV. SRI.P.BALAKRISHNAN (E) FOR R1 THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 15/11/2011, ALONG WITH ITA NO.1028/2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ITA NO.1070/2009 APPENDIX APPELLANT'S EXHIBITS ANNEXURE-A : COPY OF ORDER UNDER SECTION 143(3) R.W.S.158BC DATED 17/05/2001 FOR THE BLOCK PERIOD 1990-91 TO 1999-2000. ANNEXURE-B : COPY OF ORDER DATED 04/10/2004 OF THE COMMISSIONER OF INCOME TAX (APPEALS). ANNEXURE-C : COPY OF STATEMENT BY PARTNER. ANNEXURE-D : COPY OF ORDER DATED 31/01/2008 OF THE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH IN IT (S&S) A NO.133/COCH/2004. //TRUE COPY// PA TO JUDGE. jg C.N.RAMACHANDRAN NAIR & K.VINOD CHANDRAN, JJ. .................................................................... I.T. Appeal Nos.1070 & 1028 of 2009 .................................................................... Dated this the 15th day of November, 2011. JUDGMENT Ramachandran Nair, J. Heard Standing Counsel for the appellant and Sri.P.Balakrishnan, counsel appearing for the respondent. The connected appeals arise from common order of the Tribunal disposing of two appeals, one filed by the assessee and the other by the Revenue arising out of block assessment completed on the respondent-assessee under Section 158BC of the Income Tax Act. While the Tribunal dismissed the Revenue's appeal, assessee's appeal was substantially allowed. It is against the common order of the Tribunal the Revenue has filed the appeals. 2. After hearing both sides and on going through the orders of the Tribunal what we notice is that the Tribunal did not bother to read the assessment order or the statement recorded during search which is admissible as evidence under Section 132(4) of the Act. It is seen from the statement recorded from the assessee, though retracted after two years, and even in the objections filed by the assessee that assessee has ITA 1070&1028/09 2 partly conceded the case of suppression of income detected. This court has considered in detail the relevance of statement recorded in the course of search for assessment under Section 158BC of the Act in COMMISSIONER OF INCOME TAX VS. HOTEL MERIYA reported in (2011) 332 ITR 537. We do not propose to go into the detailed grounds raised in the Revenue's appeal because in our view, the Tribunal should not have disposed of the appeals without referring to the materials based on which assessment is made and even the assessment order itself. We are amazed at the indifference shown by the Tribunal in handling appeals and the casual way in which partial relief is granted without any rhyme or reason. Since the Tribunal has not considered the appeal or cross-appeal in detail with reference to the findings in the assessment order and in the appellate authority's order and the statements recorded and objections filed by the assessee, we allow both the appeals by setting aside the common order issued by the Tribunal and restore the appeals back to the Tribunal with direction to them to hear the parties and dispose of the same after hearing both sides and keeping in mind the judgment of this court cited above, ITA 1070&1028/09 3 within a period of three months from date of receipt of copy of this judgment. 3. Even though we have remanded the matter to the Tribunal, we feel since the matter is a very old one, it is for the assessee to approach the department for assessment on agreed additions. If the assessee comes forward with any settlement, we feel the department should take a realistic approach and offer reasonable settlement. C.N.RAMACHANDRAN NAIR Judge K.VINOD CHANDRAN Judge pms