Ita/221/2013 Of M/S. Hotel & Allied Traders Pvt. Ltd v. Deputy Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC &THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNESDAY, THE 12TH DAY OF NOVEMBER 2014/21ST KARTHIKA, 1936 ITA.No. 221 of 2013 () ----------------------- AGAINST THE ORDER IN ITA 678/COCH/2010 of I.T.A.TRIBUNAL,COCHIN BENCH DATED 25-10-2012 APPELLANT(S)/APPELLANT/APPELLANT/ASSESSEE: -------------------------------------------- M/S. HOTEL & ALLIED TRADERS PVT. LTD. C/O.CASINO HOTEL, W/ISLAND, COCHIN-3. BY ADVS.SRI.JOSEPH MARKOSE (SR.) SRI.V.ABRAHAM MARKOS SRI.BINU MATHEW SRI.TOM THOMAS (KAKKUZHIYIL) SRI.ABRAHAM JOSEPH MARKOS RESPONDENT(S)/RESPONDENT/RESPONDENT/DEPARTMENT: ------------------------------------------------------------------------ DEPUTY COMMISSIONER OF INCOME TAX CIRCLE-I, ERNAKULAM. R BY SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS INCOME TAX APPEAL HAVING COME UP FOR ADMISSION ON12-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN ITA.221/13 APPELLANT'S EXHIBITS: ANNEXURE A: A TRUE COPY OF THE ASSESSMENT ORDER DATED 26.11.2009. ANNEXURE B: A TRUE COPY OF THE ORDER PASSED IN THE APPEAL DATED 15.9.2010OF THE COMMISSIONER OF INCOME TAX (APPEALS) -11 ANNEXURE C: A TRUE COPY OF THE ORDER DATED 26.10.2012 PASSED BY THE ITATIN ITA NO.678/COCH/2010/ /TRUE COPY/ PS TO JUDGE ANTONY DOMINIC & ANIL K.NARENDRAN, JJ. -----------------------------------I.T.A.No.221 of 2013 ----------------------------------- Dated this the 12[th] day of November, 2014JUDGMENT Antony Dominic, J. 1. This appeal is filed by the assessee challenging the order passed by the Income Tax Appellate Tribunal inITA.No.678/Coch/2010 for the assessment year 2007-08.The following are the four questions of law raised inthe appeal:ITA.No.678/Coch/2010 for the assessment year 2007-08.The following are the four questions of law raised inthe appeal: “(a) Whether on the facts and circumstances of thecase the Tribunal is justified in sustaining thedisallowance of deduction made by the AssessingOfficer under Section 40A (2b) of the Act.case the Tribunal is justified in sustaining thedisallowance of deduction made by the AssessingOfficer under Section 40A (2b) of the Act. (b) Whether in the facts and circumstances of thecase the Tribunal is justified in sustaining thededuction made by the Assessing Officer underSection 40(a)(1a) of the Act.case the Tribunal is justified in sustaining thededuction made by the Assessing Officer underSection 40(a)(1a) of the Act. (c) Whether in the facts and circumstances of thecase the Tribunal is justified in not allowing thededuction under Section 80G of the Income TaxAct.case the Tribunal is justified in not allowing thededuction under Section 80G of the Income TaxAct. (d) Whether in the facts and circumstances of thecase Tribunal is justified in denying the deductionof depreciation relatable to subsidy amount ofRs.75 lakhs.”case Tribunal is justified in denying the deductionof depreciation relatable to subsidy amount ofRs.75 lakhs.” ITA.221/13 (c) Whether in the facts and circumstances of thecase the Tribunal is justified in not allowing thededuction under Section 80G of the Income TaxAct.case the Tribunal is justified in not allowing thededuction under Section 80G of the Income TaxAct. (d) Whether in the facts and circumstances of thecase Tribunal is justified in denying the deductionof depreciation relatable to subsidy amount ofRs.75 lakhs.”case Tribunal is justified in denying the deductionof depreciation relatable to subsidy amount ofRs.75 lakhs.” ITA.221/13 2.In so far as the first question is concerned, it isseen from the order of the Tribunal that theCommissioner of Income Tax (Appeals) confirmed theadditions made by the Assessing Officer, amongothers, in relation to disallowance of `5 lakhs undersection 40A(2)(a) of the Act out of the payments madeto M/s.Kuruvulanakunnel enterprises. Afterconsidering the rival contentions, the Tribunalrestricted the disallowance to `2.5 lakhs and it isin this context, the first question of law was raisedby the assessee in this appeal. seen from the order of the Tribunal that theCommissioner of Income Tax (Appeals) confirmed theadditions made by the Assessing Officer, amongothers, in relation to disallowance of `5 lakhs undersection 40A(2)(a) of the Act out of the payments madeto M/s.Kuruvulanakunnel enterprises. Afterconsidering the rival contentions, the Tribunalrestricted the disallowance to `2.5 lakhs and it isin this context, the first question of law was raisedby the assessee in this appeal. 3.The orders passed by the Assessing Officer, theCommissioner and the Tribunal show that thedisallowance of `5 lakhs and its restriction to `2.5lakhs is based on the facts and evidence availableand therefore, the findings thereon are findings offact which do not give rise to any question of law.Commissioner and the Tribunal show that thedisallowance of `5 lakhs and its restriction to `2.5lakhs is based on the facts and evidence availableand therefore, the findings thereon are findings offact which do not give rise to any question of law. 4.In so far as the remaining three questions areconcerned, order of the Tribunal shows that theseissues stand remitted to the Assessing Officer forconcerned, order of the Tribunal shows that theseissues stand remitted to the Assessing Officer for ITA.221/13 fresh consideration. Therefore, these questions donot arise for consideration of this Court at thisStage. However, the order passed by the Tribunalshows that certain observations have been made, whichare capable of influencing the Assessing Officer. 5.In the above circumstances, we clarify that theAssessing Officer shall reconsider the matter asdirected by the Tribunal untrammelled by theobservations contained in the order of the Tribunal.Appeal is disposed of accordingly.Assessing Officer shall reconsider the matter asdirected by the Tribunal untrammelled by theobservations contained in the order of the Tribunal.Appeal is disposed of accordingly. Sd/- ANTONY DOMINIC, Judge. Sd/- ANIL K.NARENDRAN, Judge. kkb.