Ita/55/2008 Of Commissioner Of Income-Tax,Tvm v. Jacob C Luke

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 5TH AUGUST 2008 / 14TH SRAVANA 1930 ITA.No. 55 of 2008 ------------------------------- (ORDER DATED 25-8-2003 IN I.T.A.No.290/COCH/2000 OF THE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH (ASSESSMENT YEAR 1994-95) APPELLANT/APPELLANT: ------------------------------------ THE COMMISSIONER OF INCOME TAX THIRUVANANTHAPURAM. BY STANDING COUNSEL SRI.GEORGE K. GEORGE. RESPONDENT/RESPONDENT: ------------------------------------------ SHRI.JACOB C.LUKE, NOBLE CASHEW INDUSTRIES KOTTARAKKARA. THIS INCOME TAX APPEAL HAVING COME UP FOR ADMISSION ON 05/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ------------------------------------------- ------------------------------------------ Dated, this the 5[th] day of August, 2008 JUDGMENT H.L.Dattu, C.J. The Revenue is before us in this appeal filed underSection 260A of the Income-tax Act, inter alia, questioning thecorrectness or otherwise of the orders passed by the Income TaxAppellate Tribunal in ITA No.290/2000 dated 25.8.2003. 2. The assessee is engaged in the business of processing ofcashew nuts and export of cashew kernels. While completing theassessment for the assessment year 1994-1995, the assessing officer hasincluded the processing charges in the total turnover while computingdeduction under section 80 HHC of the Income Tax Act. This waschallenged before the first appellate authority. The first appellateauthority following the decision of the Tribunal in ITA No.172/96 dated29.2.2000 was of the view that the profit by way of processing chargesare in the nature of charges and deserve to be excluded from profits ofthe business. This was challenged by the Revenue before the Tribunal.The Tribunal upheld the order of the first appellate authority anddismissed the appeal filed by the Revenue. ITA 56/2008 -2- 3. The Revenue has framed the following questions of law for our consideration and consequent decision. They are:- “1. Whether, on the facts and in the circumstances of the case while computing the relief undersection 80 HHC of the Income Tax Act, theprocessing charges could be excluded from theprofits of the business as also from the turnover ofthe business? 2. Whether, on the facts and in thecircumstances of the case, and in view ofExplanation (ba) to Section 80 HHC and clauses(iiia), (iiib) and (iiic) of section 28, will notturnover take into account all other receipts otherthan the excluded items of receipts? 4. The appeal was filed as early as on 3[rd] day of January, 2004 and since the Registry had pointed out certain defects in filing theappeal and since they were cured only in the year 2008, the appeal isnow posted before us for admission. 5. The learned counsel for the appellant would submit that the issues raised in this appeal is now covered by a recent decision of theApex Court and therefore, we should admit this appeal and issue noticeto the respondent. We are not inclined to accept the submission made by ITA 56/2008 -3- the learned counsel for the Revenue. 6. The Tribunal had dismissed the Revenue's appeal by an order passed in the month of August, 2003. Nearly after five yearsfrom the date of the order, if we have to issue notice to the respondentonly because, the Revenue was not diligent in prosecuting the appealfiled in the year 2004, in our view, it could cause great prejudice andinjustice to the assessee/respondent. 7. In that view of the matter, we decline to entertain thisappeal. Accordingly, the appeal is disposed of. However, we grantliberty to the Revenue to make an appropriate application/review petitionbefore the tribunal for appropriate orders.. Ordered accordingly. (H.L.DATTU) CHIEF JUSTICE (A.K.BASHEER) JUDGE