Ita v. The Commr. Of Income Tax, Calicut

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 26TH MAY 2008 / 5TH JYAISHTA 1930 ITA.No. 186 of 2000() --------------------- ITA.666/COCH/1992 of I.T.A.TRIBUNAL,COCHIN BENCH .................... APPELLANT ----------------- M/S.KERALA TRANSPORT COMPANY,Y.M.C.A. ROAD, CALICUT, REP. BYITS MANAGING PARTNER,P.V.CHANDRAN. BY ADV. SRI.C.KOCHUNNY NAIR SRI.DALE P.KURIEN RESPONDENTS: ------------- THE COMMISSIONER OF INCOME-TAX,CALICUT. BY ADV. SRI.P.K.R.MENON(SR.),SR.COUNSEL FOR IT SRI.GEORGE K. GEORGE, SC FOR IT THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 26/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR &V.K.MOHANAN, JJ. .................................................................... .................................................................... Dated this the 26th day of May, 2008. JUDGMENT Ramachandran Nair, J. The question raised in the appeal filed by the assessee is whether the Tribunal was justified in disallowing the loss claimed amounting toRs.2,19,565/-. 2. The assessee was engaged in tyre retreading mainly for it's own purpose and it has done business for a sister concern. The sister concernwas charged for the tyre retreading work at below the cost price which ledto a loss of Rs.2,19,565/-. The assessee claimed set off of this loss againstit's income. The Assessing Officer rejected the same and made addition ofthe claim of loss. Even though C.I.T.(Appeal) allowed, the Tribunalreversed the first appellate order and restored the addition. It is against thisorder of the Tribunal that the assessee has come up before this court in theappeal filed under Section 260A of the Income Tax Act. 3. We do not think the claim is tenable because on facts the Tribunalfound that the assessee was charging rates at below the cost price forretreading tyres for the sister concern. In fact assessee's activity itself is not business activity and it is only doing a service to the sister concern. Thefinancial result is assessee's own choice in as much as assessee chose tosustain loss by charging below the cost price. We do not think the assesseeis entitled to any benefit of it's own device to avoid tax. In view of theclearcut finding by the Tribunal that assessee has charged it's sister concernbelow the cost price which is a loss disallowable, we do not find any groundto interfere with the order of the Tribunal. Consequently we dismiss theappeal. C.N.RAMACHANDRAN NAIRJudge pms V.K.MOHANANJudge