Ita/155/2009 Of V.k.natesan v. The Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 28TH JUNE 2010 / 7TH ASHADHA 1932 ITA.No. 155 of 2009 ---------------------- ITA.513/2007 IF THE INCOME TAX APPELLATE TRIBUNAL,COCHIN BENCH .................... APPELLANT/APPELLANT -------------------------- V.K.NATESAN, VELLAPALLY HOUSE, KANICHUKULANGARA, ALLEPPEY. BY ADV. SRI.P.BALAKRISHNAN (E) RESPONDENT/RESPONDENT ------------------------------- THE COMMISSIONER OF INCOME TAX, CENTRAL, COCHIN. BY SRI.P.K.RAVINDRANATHA MENON, SENIOR ADVOCATE SR.COUNSEL, GOVT. OF INDIA (TAXES) THIS INCOME TAX APPEAL HAVING COME UP FOR ADMISSION ON 28/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.Chelameswar, C.J. & P.N.Ravindran, J. ------------------------------------------ I.T.A. No.155 of 2009 ------------------------------------------ Dated this the 25[th] day of June, 2010 JUDGMENT J.Chelameswar, C.J. This is an appeal preferred under Section 260A of theIncome Tax Act, 1961 aggrieved by the order dated 8[th] August,2008 in ITA No.513/Coch/2007 on the file of the Income TaxAppellate Tribunal, Cochin Bench. The assessment year is2004-05. 2. For the said assessment year the appellant herein filed return declaring an income of Rs.6,86,025/- whereas theassessing authority came to the conclusion that the appellant hada total income of Rs.23,12,100/- assessable to tax. Out of theabovementioned amount, an amount of Rs.13,99,528/- was heldto be an income of the appellant herein falling under the head ofshort term capital gains. 3. It is the abovementioned conclusion of the assessing authority which is the subject matter of dispute in the instantappeal. ITA No.155 of 2009 - 2 - 4. According to the appellant, the abovementioned amount represents the long term capital gain of the appellantaccrued on account of the sale of shares held by him in theFederal Bank Limited. According to him, a total of 5750 sharesshares were held by the appellant, his wife, daughter and sonin the following manner: “Belongs to V.K.Natesan 1150 S.Preethy 1150 VP Vandana 1150 V.N.Tushar 2300-------- Total 5750” 5. The appellate Tribunal recorded that though the appellant herein was asked to appear before the assessingauthority, the appellant could not appear before the assessingofficer and did not adduce any evidence though he waspermitted to produce evidence to substantiate his claim. 6. In the background of the abovementioned fact, the instant appeal is filed framing the following questions forconsideration of this Court: “A. Whether on the facts and in thecircumstances of the case the Tribunal is correctin law and fact in assessing the capital gains taxarising out of the sale of 5750 shares of theFederal Bank in the hands of the appellant asshort term capital gains? B. Whether on the facts and in thecircumstances of the case the Tribunal is correctin law and fact in assessing the gains arising outof the sale proceeds of 5750 shares of theFederal Bank as short terms capital gains?” 7. Section 260A(1) of the Income Tax Act reads as follows: “An appeal shall lie to the High Court fromevery order passed in appeal by the AppellateTribunal before the date of establishment of theNational Tax Tribunal, if the High Court issatisfied that the case involves a substantialquestion of law.” 8. It can be seen from the above that an appeal tothis Court is maintainable if only this Court is satisfied that thecase involves a substantial question of law. The questionsextracted above, by no stretch of imagination can be ITA No.155 of 2009 - 4 - categorised as substantial question of law. The appellant seeks a rehearing on the questions of fact. 7. Section 260A(1) of the Income Tax Act reads as follows: “An appeal shall lie to the High Court fromevery order passed in appeal by the AppellateTribunal before the date of establishment of theNational Tax Tribunal, if the High Court issatisfied that the case involves a substantialquestion of law.” 8. It can be seen from the above that an appeal tothis Court is maintainable if only this Court is satisfied that thecase involves a substantial question of law. The questionsextracted above, by no stretch of imagination can be ITA No.155 of 2009 - 4 - categorised as substantial question of law. The appellant seeks a rehearing on the questions of fact. In the circumstances, we do not see any reason toentertain this appeal. The appeal is, therefore, dismissed atthe admission stage. J.Chelameswar, Chief Justice vns P.N.Ravindran,Judge