Ita/1345/2009 Of The Commissioner Of Income Tax,Cochin v. Southern Electromag(P)Ltd,Cochin-36

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 30TH MARCH 2010 / 9TH CHAITHRA 1932 ITA.No. 1345 of 2009() ------------------------------ IT(S&S)A.11/COCH/2004 of INCOME TAX APPELLATE,TRIBUNAL,COCHIN BENCH .................... APPELLANT/RESPONDENT ------------------------ THE COMMISSIONER OF INCOME TAX,COCHIN. BY ADV. SRI.JOSE JOSEPH, SC, FOR INCOME TAX RESPONDENT(S): APPELLANT ------------------------ SOUTHERN ELECTROMAG (P) LTD., PANAMPILLY NAGAR,KOCHI-36. ADV. SRI.P.BALAKRISHNAN (E) THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 30/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.Ramachandran Nair & P.S.Gopinathan, JJ. ================================================== ================================================== Dated this the 30[th] day of March, 2010. JUDGMENT Ramachandran Nair, J. 1.Heard the senior standing counsel for the appellant and Sri.P.Balakrishnan for therespondent.respondent. 2.The only question raised is whether the amountassessed as long term capital gain is undisclosedincome within the meaning of Section 158BB forassessment under the Income Tax Act. After fourdays of the search, the assessee filed a revisedreturn for the relevant assessment yeardisclosing the income from long term capital gainby stating that information about sale of sharesdone through other companies itself was receivedassessed as long term capital gain is undisclosedincome within the meaning of Section 158BB forassessment under the Income Tax Act. After fourdays of the search, the assessee filed a revisedreturn for the relevant assessment yeardisclosing the income from long term capital gainby stating that information about sale of sharesdone through other companies itself was received after filing of original return. The Tribunalfound that assessee had accounted the sharepurchases and in fact the Department had notdetected in the course of search any details ofsale of shares assessable as long term capitalgain. Since the sole information about the saleof shares is from the revised return itself, theTribunal held that the income cannot be treatedas undisclosed income within the meaning ofSection 158BB of the Act. We do not find anymerit in the Department appeal because, there isnothing to indicate that the income in the formof long term capital gain is detected by theDepartment in the course of search. Further, itis the finding of the Tribunal that theDepartment came to know about the availability oflong term capital gain only based on the revisedreturn filed by the assessee. Besides this, itis clear from the order that the assessee had ITA1345/09 sufficient business loans to set off the longterm capital gain and so much so, no purpose isserved to the assessee by not disclosing theincome in the original return. In view of thefactual findings of the Tribunal that the incomeassessed does not constitute undisclosed incomeunder Section 158 BB, no interference is calledfor in the order of the Tribunal under appeal.Consequently, we dismiss the Department appeal. C.N.Ramachandran Nair, Judge. P.S.Gopinathan, Judge. sl.