Ita/201/2010 Of The Commissioner Of Income Tax,Kottayam v. M/S.accelerated Freeze Drying Co.ltd

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & THE HONOURABLE MR. JUSTICE ASHOK MENON THURSDAY, THE 2ND DAY OF AUGUST 2018 / 11TH SRAVANA, 1940 I.T.A.No.201 of 2010 ---------------------------- AGAINST THE ORDER IN I.T.A.NO.1286/COCH/2005& CO NO.25/COCH/06DATED 13.11.2009 OF THE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, COCHIN. . -------------------- APPELLANT(S)/ APPELLANT:- -------------------------------------------- COMMISSIONER OF INCOME TAX, KOTTAYAM. BY SENIOR COUNSEL FOR GOVERNMENT OF INDIA (TAXES) SRI.P.K.R.MENON BY ADV.SRI.JOSE JOSEPH, SC, FOR INCOME TAX. RESPONDENT(S)/ RESPONDENT:- -------------------------------------------------- M/S. ACCELERATED FREEZE DRYING CO. LTD., ALAPPUZHA. R1 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR R1 BY ADV. SRI.P.GOPINATH R1 BY ADV. SRI.P.BENNY THOMAS R1 BY ADV. SRI.K.JOHN MATHAI R1 BY ADV. SRI.JOSON MANAVALAN R1 BY ADV. SRI.KURYAN THOMAS THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 02-08-2018, ALONG WITH I.T.A.NO.281 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- I.T.A.NO.201 OF 2010 APPENDIX APPELLANT(S)' ANNEXURES:- --------------------------------------------- ANNEXURE-A ASSESSMENT ORDER U/S.143(3) R.W.S.147 DATED 16.903.2004. ANNEXURE-B ORDER OF THE CIT(A), KOCHI IN ITA-10/APY/CIT(A)-IV/04-05DATED 13.03.2008. ANNEXURE-C ITAT's ORDER IN ITA NO.541/COCH/2008 DATED 14.07.2009. ADDITIONAL ANNEXURE-DTRUE COPY OF ASSESSMENT ORDER DATED 21.02.2005. ADDITIONAL ANNEXURE-ETRUE COPY OF THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) DATED 10.10.2005. RESPONDENT(S)' ANNEXURES:- ------------------------------------------------ NIL. vku/- [ true copy ] K. Vinod Chandran & Ashok Menon, JJ. ------------------------------------------------------- I.T.A.Nos.201 & 281 of 2010 ------------------------------------------------------- Dated, this the 02[nd] day of August, 2018JUDGMENT Vinod Chandran, J: The common order of the Tribunal from which arises both these appeals, is a classic illustration of how an order of the Tribunal,the last fact finding authority, should not be. 2. There are four questions raised in both the appeals. Inthe appeal on assessment, being I.T.A.No.201 of 2010, there arethree issues - (i) the disallowance of interest accrued to the Bank,(ii) interest disallowed on diversion of borrowed funds to sisterconcerns and (iii) whether the Foreign Exchange loss is a permissiblededuction. In I.T.A.No.281 of 2010, arising from a re-assessmentproceedings, the issue is of capital gains on transfer of undertaking. Areading of the Tribunal order indicates that they have not looked intothe facts and without any application of mind found in favour of theassessee merely quoting judgments without applying them to thefacts of the case. We specifically notice that the appeals are of theyear 2010 and the same were pending here for the last eight years. Ifwe go ahead to consider the appeals, then we would be assuming the role of the Tribunal, which is the last fact finding authority. Only insuch circumstances, we would remand the issue to be considered bythe Tribunal. We have to notice while remanding the matter that, thereis a Cross Objection filed by the Revenue; against which there is noappeal filed. In fact, all the questions were found against theassessee, by the assessing authority and the first appellate authority.In such circumstances, the Cross Appeal would stand rejected asunnecessary and such rejection would not affect the consideration ofthe appeal by the assessee. The common impugned order is setaside. Especially noticing the long pendency, we request the Tribunalto dispose of the appeals within a period of six months from the dateof receipt of a certified copy of this judgment. The parties are directedto appear before the Tribunal on 20.08.2018. The appeals are disposed of as above. No costs.