Ita/136/2008 Of The Commissioner Of Income Tax,Tvm v. M/S.kerala Kaumudi (P) Ltd.,Tvm

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY THURSDAY, THE 30TH DAY OF JULY 2015/8TH SRAVANA, 1937 ITA.No. 136 of 2008 ( ) ------------------------ AGAINST THE ORDER IN ITA 194/COCH/99 of INCOME TAX APPELLATETRIBUNAL,COCHIN BENCH DATED 09-12-2002 APPELLANT: -------------------- THE COMMISSIONER OF INCOME TAX THIRUVANANTHAPURAM BY ADV.SRI.JOSE JOSEPH, SC, FOR INCOME TAX RESPONDENT: ---------------------------- M/S. KERALA KAUMUDI (P) LIMITED, THIRUVANANTHAPURAM R1 BY ADV. SRI.SAJI VARGHESE THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON30-07-2015, THE COURT ON THE SAME DAY DELIVERED THEFOLLOWING: ITA.No. 136 of 2008 APPENDIX PETITIONER'S ANNEXURES: ANNEXURE – A: TRUE COPY OF THE ORDER OF THE ASSESSINGOFFICER DATED 29.03.1993. ANNEXURE – B: TRUE COPY OF THE ORDER OF THE COMMISSIONEROF INCOME TAX (APPEALS) DATED 30.12.1994. ANNEXURE – C: CERITIFIED COPY OF THE ORDER OF THE INCOMETAX APPELLATE TRIBUNAL DATED 09.12.2002. ANNEXURE – D: TRUE COPY OF THE ORDER OF THE COMMISSIONEROF INCOME TAX (APPEALS) DATED 9.1.1987 FOR A.Y. 1983-84. RESPONDENT'S ANNEXURES: NIL //TRUE COPY// P.A. TO JUDGE smv ANTONY DOMINIC & SHAJI P. CHALY, JJ. ----------------------------------------------- I.T.A. No.136 of 2008----------------------------------------------- Dated this the 30[th] day of July, 2015 JUDGMENT Antony Dominic,J. This appeal is filed by the Revenue challenging the orderpassed by the Income Tax Appellate Tribunal, Cochin Bench inITA No.194 of 1999 concerning the assessment year 1982-1983.By the said order, the Tribunal dismissed the appeal filed by theRevenue seeking to set aside the order passed by theCommissioner of Income Tax (Appeals) whereby the appeal ofthe assessee was allowed and Annexure-A assessment order wasset aside. 2. Briefly stated the facts of the case are that the assesseecompany is engaged in printing and publishing of a newspaperby name 'Kerala Kaumudi'. In the assessment year 1982-1983,the assessee imported from Germany a Rotary Printing Press.This was installed by the assessee using local labour. On thatbasis, the assessee claimed investment allowance and depreciation in the assessment year 1982-1983, which wasallowed by the Assessing Officer. 3. In the subsequent assessment year 1983-1984, theassessee claimed deduction of Rs.68,371/- as revenueexpenditure towards installation of the printing press inquestion. That was disallowed by the Assessing Officer. In theappeal filed, the Commissioner of Income Tax (Appeals) held it tobe a capital expenditure on the basis that installation of themachinery was not completed in the previous assessment year. 4. Relying on that observation made in the appellate order,the assessment for the year 1982-1983 was re-opened and inAnnexure-A order, the Assessing Officer withdrew theinvestment allowance and depreciation originally granted. Thisorder was set aside by the Commissioner of Income Tax(Appeals), whose order was confirmed by the Tribunal. It is inthese circumstances, the Revenue has filed this appeal. 5. We heard the learned Standing Counsel for the Revenue and the learned Senior Counsel for the assessee. 6. The premise on which the assessment was re-opened wasthat the installation of the Rotary Printing Press was not completed in the assessment year 1982-1983 and that therefore,the investment allowance and depreciation granted in theassessment order was irregular. 4. Relying on that observation made in the appellate order,the assessment for the year 1982-1983 was re-opened and inAnnexure-A order, the Assessing Officer withdrew theinvestment allowance and depreciation originally granted. Thisorder was set aside by the Commissioner of Income Tax(Appeals), whose order was confirmed by the Tribunal. It is inthese circumstances, the Revenue has filed this appeal. 5. We heard the learned Standing Counsel for the Revenue and the learned Senior Counsel for the assessee. 6. The premise on which the assessment was re-opened wasthat the installation of the Rotary Printing Press was not completed in the assessment year 1982-1983 and that therefore,the investment allowance and depreciation granted in theassessment order was irregular. 7. Facts are evident from the orders passed by theCommissioner and the Tribunal, which show that on import ofthe machinery, using local labour, the assessee had installed it.To prove that the Press was installed and commissioned, theassessee had produced before the Assessing Officer a bill issuedit for undertaking printing work. However, the Assessing Officerdeclined to act upon that bill stating that it lacked anyevidentiary value. The reason for such conclusion was that itwas issued to a related company. On this aspect, the Tribunalhas rightly held that in the absence of any other justifiablevitiating circumstances, the Assessing Officer was wrong indeclining to accept the bill produced by the assessee. We fullyagree with the Tribunal on this finding. This therefore, showsthat the fundamental basis on which the assessment was re-opened itself was untenable. If that be so, the Tribunal wasjustified in upholding the order of the Commissioner settingaside Annexure – A, the re-opened assessment order issued for the assessment year 1982-1983. Such being the case, we do notsee any question of law arising in this appeal. Appeal fails and accordingly it is dismissed. Sd/-ANTONY DOMINIC JUDGE smv Sd/-JUDGE SHAJI P. CHALY