Ita/106/2010 Of Commissioner Of Income Tax, Thrissur v. P.a. Basheer, Palayankode House

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.P.RAY WEDNESDAY, THE 12TH JANUARY 2011 / 22ND POUSHA 1932 ITA.No. 106 of 2010() --------------------- AGAINST THE ORDER IN ITA.50/2004 of I.T.A.TRIBUNAL,COCHIN BENCH .................... APPELLANT/APPELLANT --------------------------------------- THE COMMISSIONER OF INCOME TAX, THRISSUR. BY ADV. SRI.JOSE JOSEPH, SC, FOR INCOME TAX RESPONDENT(S): RESPONDENT ------------------------- P.A.BASHEER, PALAYANKODE HOUSE, KRISHNAPURAM ROAD, KALATHODE, THRISSUR. ADV. SRI.T.M.SREEDHARAN FOR R1 SRI.V.P.NARAYANAN FOR R1 SMT.C.K.SHERIN FOR R1 THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 12/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & BHABANI PRASAD RAY, JJ. ---------------------------------- --------------------------------- Dated, this the 12[th] day of January, 2011 J U D G M E N T Ramachandran Nair, J. This appeal is filed by the Revenue against the order of the Tribunal confirming the CIT (Appeal)'s order partly sustaining theadditions and partly cancelling the assessment on various heads.The assessment completed is one under Section 158 BC for theblock period from 01/04/1989 to 28/02/2000. 2. We have heard Shri. P.K.R.Menon, learned Senior counsel appearing for the appellant Revenue and Shri.T.M.Sreedharan,learned counsel appearing for the respondent assessee. 3. After hearing both sides and after going through the orders impugned, we notice that the main issue raised by theDepartment, that Rs.10 lakhs being the value of stock found in theshop at Kanhangad should be treated as the income of the assesseebased on the statement given by him to the Income TaxDepartment, is not accepted by the Tribunal. Even though the assessee in the statement recorded under Section 132(4) of theIncome Tax Act stated that he is running the business, it is seenthat his son Shri.Bosky is carrying on business in the said shopunder sales tax registration obtained from the State Governmentand he is filing return for the income earned by him from 1999-2000 onwards. It is the finding of the appellate authorities that theassessee's son is filing return for the income from the samebusiness. So much so, we do not find any ground to interfere withthe order of the Tribunal declining to sustain the additions merelybased on the statement given by the assessee under Section 132(4)of the Act. In our view the evidence has to be taken along withother materials on record and the assessee's son Shri.Bosky hadtaken registration and is carrying on business in the shop and isreturning income from the said business. All these cannot beignored and superseded by a mere statement by the assessee to theDepartment that the business belongs to him. In view of the findingof fact recorded by the Tribunal, this Court will not be justified ininterfering with their finding. In this view of the matter, value ofstock found at the business place at Kanhangad was rightly held bythe Tribunal as not assessable as assessee's income. 4.Further it is seen that the said shop had liability of aboveRs.2.4 lakhs, which is also not seen allowed by the Assessing Officer. However, this claim was also found to be genuine by theappellate authorities and therefore, we do not find any justificationto sustain the addition of this amount towards assessee's income. 4.Further it is seen that the said shop had liability of aboveRs.2.4 lakhs, which is also not seen allowed by the Assessing Officer. However, this claim was also found to be genuine by theappellate authorities and therefore, we do not find any justificationto sustain the addition of this amount towards assessee's income. 5.The next question raised pertains to disallowance ofexemption claimed under Section 54E for the capital gain receivedby the assessee on the sale of 15 cents of land at Mannuthy. Hereagain we notice that the appellate authority on facts found that thebuilding was constructed though in the name of assessee's wife, itbelonings to him and so much so, the reinvestment of the saleproceeds in the house newly constructed entitle the assessee for thebenefit under Section 54E. Therefore, we do not find any ground tointerfere with the finding of the Tribunal on this issue. The remainquestions raised are also with regard to the finding on facts by theTribunal. Since no substantial question of law is arising from the orderof the Tribunal, we dismiss the Appeal filed by the Department. (C.N.RAMACHANDRAN NAIR, JUDGE) (BHABANI PRASAD RAY, JUDGE)