Ita/85/2001 Of M/S.ram Bahadur Thakur Ltd. Kochi v. The Dy. Commissioner Of Incometax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 30TH JANUARY 2008 / 10TH MAGHA 1929 ITA.No. 85 of 2001() -------------------- AGAINST THE ORDER DATED 4/12/2000 IN COCH. IN ITA.733/1992 of I.T.A.TRIBUNAL,COCHIN BENCH .................... APPELLANT/APPELLANT:- ------------------------------------- M/S.RAM BAHADUR THAKUR LIMITED,“SIDDHARTH”, WILLINGDON ISLAND,COCHIN : 682 003. BY ADV. SRI.JOSEPH MARKOSE SRI.JOSEPH KODIANTHARA RESPONDENT/RESPONDENT:- ------------------------------------------ THE DEPUTY COMMISSIONER OF INCOME TAX (ASESSMENT),SPECIAL RANGE I, ERNAKULAM. BY ADV. SRI.P.K.R.MENON(SR.),SR.COUNSEL FOR IT FOR R SRI.GEORGE K. GEORGE, SC FOR IT FOR R THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 30/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N. Ramachandran Nair &T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - I.T.A.NO.85 of 2001 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 30[th] day of January, 2008. JUDGMENT C.N. Ramachandran Nair, J. Heard learned counsel for the appellant and learned Senior StandingCounsel appearing for the respondent. The question raised is whether the appellant is entitled to deductionof Rs.30 lakhs stated to have been paid to the tenant to vacate the premises,in the computation of sale of the leased premises. The matter was onceremanded by this court vide Annexure F judgment. However, even afterremand, the Tribunal has declined relief to the assessee, because theassessee did not prove that the payment was made to the so called tenant.Learned counsel for the appellant contended that the Tribunal has exceededthe scope of the remand by this court and this court had not authorised theTribunal to consider whether payment was in fact made. We do not findany substance in this contention because deduction in the computation ofcapital gains is permissible in this case only if the assessee proves thefollowing facts: (a) that the company to which payment was made, was thetenant; (b) payment of the amount claimed was in fact made to the said company; and © the payee vacated the premises before the sale of thebuilding. The above are facts which should be proved through evidence andwe find no difficulty for the assessee to prove these facts by production ofprofit and loss account and balance sheet of the payee company which isadmittedly a public limited company, of which one of the Directors is aDirector of the assessee company. It is also reported that the tenantcompany has in its equity Government participation and if that be so, itwould have printed profit and loss account and if the huge amount of Rs.30lakhs was paid by the assessee as claimed by him, then it should find a placein the profit and loss account and the balance sheet of the company for therelevant year. In fact, the income would have been considered in theincome tax assessment of the payee company. Instead of producingconvincing evidence, the assessee has chosen to produce a receipt forpayment of Rs.30 lakhs without even furnishing the bank particulars. We do not find any question of law arising from the order of theTribunal rejecting the claim for want of proof. This appeal is accoridnglydismissed as devoid of any merit. (C.N. Ramachandran Nair, Judge.) (T.R. Ramachandran Nair, Judge.) -3- C.N. Ramachandran Nair & &T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - -I.T.A. No.85 of 2001- - - - - - - - - - - - - - - - - - - - - - JUDGMENT 30[th] January, 2008.