Ita/369/2010 Of The Commissioner Of Income Tax, Cochin v. M/S.appollo Tyres Ltd., Cochin

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR.JUSTICE N.ANIL KUMAR WEDNESDAY, THE 10TH DAY OF APRIL 2019/20TH CHAITHRA, 1941 ITA.No. 369 of 2010 AGAINST THE ORDER/JUDGMENT IN ITA 19/Coch/04 ofI.T.A.TRIBUNAL,COCHIN BENCH DATED 17-09-2009 APPELLANT: THE COMMISSIONER OF INCOME TAX, COCHIN. BY ADVS. SRI.CHRISTOPHER ABRAHAM, INCOME TAX DEPARTMENT SRI.K.M.V.PANDALAI, INCOME TAX DEPARTMENT RESPONDENT:M/S.APOLLO TYRES LTD., 6TH FLOOR, CHERUPUSHPAM BUILDINGS,SHANMUGHAM ROAD, KOCHI. BY ADVS.SMT.A.S.BEENUSRI.BINU MATHEWSRI.B.J.JOHN PRAKASHSRI.JOSEPH MARKOS (SR.)SRI.MATHEWS K.UTHUPPACHANSRI.TERRY V.JAMESSRI.TOM THOMAS (KAKKUZHIYIL)SRI.V.ABRAHAM MARKOSSRI.V.B.UNNIRAJ THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 10.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ITA.No.369 of 2010 ..2.. JUDGMENT P.R.Ramachandra Menon, J. This is an appeal preferred by the Revenue. Challenge isagainst Annexure-C order passed by the Income Tax AppellateTribunal in respect of the assessment year 1989-90. 2.Heard Sri.Christopher Abraham, the learnedStanding Counsel for the appellant and Sri.Joseph Markos, the learnedSeniorCounselappearingfortherespondent/assessee. 3.The respondent assessee is engaged in themanufacture of tyres, flaps and tubes who filed return inrespect of the assessment year 1989-'90. The assessment wasfinalized by the assessing officer under section 143 (3) of theIncome Tax Act, as per Annexure-A order dated 16.03.2001.Since this was detrimental to the rights and interests of theassessee, it was taken up in appeal. The appeal was finalizedby the Commissioner, Income Tax (Appeals) as per Annexure-Border dated 21.10.2003, whereby some benefits came to begranted, while some reliefs were declined. This made the assessee to file a further appeal before the Tribunal and after hearing both the sides, the Tribunal interdicted the orderpassed by the Appellate Authority and granted some reliefsvide Annexure-C order, which is under challenge as mentionedabove. 4.The appellant has suggested some questions asinvolving substantial questions of law, which are to thefollowing effect:- “Whether, on the facts and in thecircumstances of the case, the Tribunal is rightin law and fact - i)in allowing the claim of the assesseeregarding advertisement expenses? ii)in allowing the claim of the assesseerelating to loss on sale of NHPC Bonds?” 5.During the course of hearing it is brought to the notice of this Court that the disallowance of someadvertisement expenses by the Assessing Authority in respectof the assessment year 1993-94 (for the reason that theparties were not traceable) was the subject matter ofconsideration before this Court in I.T.A.No.1329/2009. It was ..4.. based on the said assessment order for the assessment year1993-94, that the assessment in respect of the assessmentyear 1989-90 also came to be reopened by the AssessingOfficer as per Annexure-A order dated 16.3.2001. The appealpreferred before the Commissioner, Income Tax (Appeals) wasnot fruitful to the requisite extent, which made the assessee toapproach the Tribunal by filing further appeal. The version putforth by the assessee was accepted and leave was granted;which in turn is under challenge. Similar issue has alreadybeen considered by this Court in I.T.A.No.1329/2009. 6.After hearing both the sides, we find that thematerials produced before the Assessing Officer would clearlyreveal that there was no dispute with regard to the works inrelation to the publicity effected. In so far as there is nodispute as to the publicity effected and so far as the paymentwas effected through crossed cheques and since all thesecheques have been encashed, we are of the view that this isnot a fit case where interference is to be made with the findingand reasoning given by the Tribunal. ITA.No.369 of 2010 6.After hearing both the sides, we find that thematerials produced before the Assessing Officer would clearlyreveal that there was no dispute with regard to the works inrelation to the publicity effected. In so far as there is nodispute as to the publicity effected and so far as the paymentwas effected through crossed cheques and since all thesecheques have been encashed, we are of the view that this isnot a fit case where interference is to be made with the findingand reasoning given by the Tribunal. ITA.No.369 of 2010 ..5.. 7.With regard to the second issue as to the losssustained by the assessee on sale of NHPC bonds almostsimilar question was raised in I.T.A.No.60/2010, where it wasin respect of IRFC bonds. The question was answered againstthe Revenue. 8.It is also to be noted that the second question itselfis not factually correct. The facts and figures have beenmeticulously analysed by the Tribunal. It is also to be noted that the second question itself No substantial question of law, so as to warrant interference in terms of Section 260A of the Income Tax Act isbrought to our notice. Appeal fails and it is dismissedaccordingly. Sd/- P.R.RAMACHANDRA MENON, JUDGE Sd/- skj N.ANIL KUMAR, JUDGE ..6.. APPENDIX ANNEXURE ACOPY OF ORDER U/S.143(3) READ WITH SECTION147 DTD.16.03.2001 FOR THE ASSESSMENT YEAR1989-90. ANNEXURE BCOPY OF THE ORDER DTD.21.10.2003 OF THE COMMISSIONER OF INCOME TAX (APPEALS). ANNEXURE CCOPY OF THE ORDER DTD.17.09.2009 OF THE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH IN ITA.No.19/Coch/2009.