C.n.ramachandran Nair, J v. C.n.ramachandran Nairjudge

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 30TH JANUARY 2008 / 10TH MAGHA 1929 ITA.No. 78 of 2001() -------------------- AGAINST THE ORDER DATED / / IN COCH. IN ITA.294/COCH/1994 of I.T.A.TRIBUNAL,COCHIN BENCH .................... APPELLANT: ----------------- THE COMMISSIONER OF INCOME TAX,CALICUT. BY ADV. SRI.P.K.R.MENON(SR.),SC FOR IT SRI.GEORGE K. GEORGE, SC FOR IT RESPONDENTS: ------------- M/S.THE WESTERN INDIA PLYWOODS LTD., CANNANORE. BY ADV. SRI.N.JAMES KOSHY THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ALONG WITH ITA NO.100/2001 ON 30/01/2008, THE COURT ON 30/01/2008 DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR &T.R.RAMACHANDRAN NAIR, JJ. .................................................................... ....................................................................Dated this the 30th day of January, 2008. JUDGMENT C.N.Ramachandran Nair, J. Heard Standing Counsel for the appellant and counsel appearing forthe respondent. These appeals arise from common order of the Tribunalpassed for the years 1985-86 and 1991-92. Even though question raised i.e.assessibility of refund of central excise duty, is covered in favour of theRevenue by decision of the Supreme Court in POLYFLEX (INDIA) PVTLTD. V. COMMISSIONER OF INCOME TAX (2002) 257 ITR 343,counsel for the assessee submitted that in this case amount was released tothe petitioner against Bank Guarantee. He further submitted that as andwhen Supreme Court disposed of the matter, the assessee included the entirerefund amount in the income in the assessment year relevant for theprevious year 2000-2001. The return was submitted and assessmentcompleted and, therefore, department cannot press these appeals is thecontention raised by counsel for the assessee. We find force in thiscontention because if very same income is returned for subsequent year anddepartment accepted the same and assessed the income, then there is no scope for including the very same income in these years. However, sincethe details of assessment made for 2000-2001 is not on record, we disposeof the appeals directing the officer to verify whether the very same incomehave been assessed in 2000-2001 and whether assessments have becomefinal and if so, the assessment cannot be revised for these years. However,if the income is not assessed for the year 2000-2001 or any other year asstated in this court, the Assessing Officer will compute the incomefollowing the decision of the Supreme Court referred above. The appealsare disposed of by modifying the order of the Tribunal as above. C.N.RAMACHANDRAN NAIRJudge pms T.R.RAMACHANDRAN NAIRJudge