Ita/369/2009 Of The Commissioner Of Income Tax,Cochin v. M/S.hotel & Allied Traders (P) Ltd,Cochi

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 30TH MARCH 2010 / 9TH CHAITHRA 1932 ITA.No. 369 of 2009() --------------------- ITA.246/COCH/2000 of I.T.A.TRIBUNAL,COCHIN BENCH .................... APPELLANT/RESPONDENT. ----------------------------------------- THE COMMISSIONER OF INCOME TAX, COCHIN. BY ADV. SRI.JOSE JOSEPH, SC, FOR INCOME TAX RESPONDENT: --------------- M/S. HOTEL & ALLIED TRADES (P) LTD., W/ISLAND, COCHIN - 3. ADV. SRI.P.BALAKRISHNAN (E) THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 30/03/2010, THE COURT ON 30/03/2010 DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. .................................................................... I.T. Appeal No.369 of 2009 .................................................................... Dated this the 30th day of March, 2010. JUDGMENT Ramachandran Nair, J. Question raised is whether the Tribunal was justified in cancelling the disallowance made under Section 43B of the Income TaxAct in respect of the expenditure tax claimed as paid by the assesseefrom out of adjustments sought from income tax refund of 1995-96.We have heard Standing Counsel appearing for the appellant and Adv.Sri.P.Balakrishnan appearing for the respondent-assessee. 2. After hearing both sides and after going through Tribunal'sorder, we do not find any substantial question of law arising from theorder of the Tribunal for our decision because admittedly assessee'srequest for adjustment of income tax refund for 1995-96 towardsexpenditure tax due for 1989-90 and 1990-91 was allowed by theAssessing Officer and we do not know how adjustment from refundcannot be treated as payment made by the assessee as and whenadjustment is allowed by the officer. Even though Standing Counsel contended that demand of expenditure tax was later cancelled, theprovision is to assess such tax on refund as and when refund is grantedunder Section 41(1) of the Act. We, therefore, dismiss the appeal asdevoid of any merit. C.N.RAMACHANDRAN NAIRJudge pms P.S.GOPINATHANJudge