Calcutta High Court In Geo Miller & Company v. C.n.ramachandran Nair) Judge

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 8TH FEBRUARY 2010 / 19TH MAGHA 1931 ITA.No. 3 of 2007() ------------------- ITA.751/COCH/2005 of I.T.A.TRIBUNAL,COCHIN BENCH .................... APPELLANT/RESPONDENT. ----------------------------------------- TOM THOMAS, M/S.TRI-TEE TRADING (P) LTD, BUILDING NO.23/527, MADURA COMPANY ROAD, KMP NAGAR, PALLURUTHY, COCHIN-682006. BY ADV. SRI.P.BALAKRISHNAN (E) RESPONDENT(S): RESPONDENT/APPELLANT. ------------------------------------ THE COMMISSIONER OF INDCOME TAX, ERNAKULAM. BY SC SRI. JOSE JOSEPH. THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 08/02/2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -------------------------------------------- -------------------------------------------- Dated this the 8th day of February, 2010 JUDGMENT Ramachandran Nair, J. The question raised is whether the rectification order issuedunder Section 154 of the IT Act confirmed by the Tribunal is tenable ornot. In the assessment for the year 1992-93 the assessee claimeddeduction under Section 80HHC of the Act even though assessee hassustained loss in business. The assessing officer however, computedthe relief under Section 80HHC. However, the assessing officernoticed that the deduction allowed in respect of total income fromother sources, house property and share income from firm is notcorrect. Therefore he rectified the assessment under Section 154 whichwas subject matter of appeal before the first appellate authority. Eventhough first appeal is allowed, the Tribunal on second appeal reversedthe same by following the judgment of this Court in KIL KOTAGIRITEA AND COFFEE ESTATES CO. LTD. , 174 ITR 579 (Ker.).Before us, counsel for the assessee has relied on the decision of the Calcutta High Court in GEO MILLER & COMPANY V. DEPUTYCOMMISSIONER OF INCOME TAX, 262 I.T.R. 237. However,standing counsel pointed out that the issue on merits itself standsdecided against the assessee by the judgment of the Supreme Court inIPC Lab's case, 266 ITR 521 wherein the Supreme Court held that ifthe net result of business is loss, assessee is not entitled to deductionunder Section 80HHC of the Act. Since the issue on merits is decidedagainst the assessee, we do not propose to go into the technicalargument raised that rectification order is not tenable. Consequentlywe dismiss the appeal. (C.N.RAMACHANDRAN NAIR)Judge. (P.S. GOPINATHAN) Judge. kk