Ita/9/2017 Of The Commissioner Of Income Tax v. G Raju

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU THURSDAY, THE 9TH DAY OF MARCH 2017/18TH PHALGUNA, 1938 ITA.No. 9 of 2017 () --------------------- AGAINST THE ORDER/JUDGMENT IN ITA 76/COCH/2012 of I.T.A.TRIBUNAL,COCHINBENCH DATED 17-08-2016 APPELLANT(S)/APPELLANT/RESPONDENT/REVENUE : ------------------------------------------------------------ THE COMMISSIONER OF INCOME TAX, THIRUVANANTHAPURAM BY ADVS.SRI.CHRISTOPHER ABRAHAM SRI.K.M.V.PANDALAI RESPONDENT/RESPONDENT/APPELLANT/ASSESSEE:------------------------------------------------------- G RAJU KARTHIKA, TC 30/349 (2), KGRA-441, KALLUMMOODU, THIRUVANANTHAPURAM - 695 010. THIS INCOME TAX APPEAL HAVING COME UP FOR ADMISSION ON 09-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ITA.No. 9 of 2017 () APPENDIX : 2 : PETITIONER'S ANNEXURES: ANNEXURE A:TRUE COPY OF THE ORDER OF THE ASSESSING OFFICER U/S14(3) DATED 31.12.2009.14(3) DATED 31.12.2009. ANNEXURE B:TRUE COPY OF THE ORDER OF THE COMMISSIONER OFINCOME TAX (APPEALS) DATED 28.12.2011.INCOME TAX (APPEALS) DATED 28.12.2011. ANNEXURE C:TRUE COPY OF THE ORDER OF THE INCOME TAX APPELLATETRIBUNAL DATED 31.07.2013.TRIBUNAL DATED 31.07.2013. ANNEXURE D:TRUE COPY OF THE JUDGMENT OF THE HIGH COURT OFKERALA IN ITA NO. 23 OF 2014 DATED 20TH JULY, 2015.KERALA IN ITA NO. 23 OF 2014 DATED 20TH JULY, 2015. ANNEXURE E:TRUE COPY OF THE ORDER OF THE INCOME TAX APPELLATETRIBUNAL, COCHIN BENCH IN ITA NO. 76/COCH/2012 DATED17.08.2016.TRIBUNAL, COCHIN BENCH IN ITA NO. 76/COCH/2012 DATED17.08.2016. RESPONDENTS' ANNEXURES:NIL //TRUE COPY// P.A. TO JUDGE. ANTONY DOMINIC & DAMA SESHADRI NAIDU, JJ. ------------------------------------------- Income Tax Appeal No. 9 of 2017 ( ) ------------------------------------------ Dated this the 9[th] day of March, 2017. JUDGMENT Antony Dominic,J. The claim for indexed cost of improvements raised by therespondent assessee before the Income Tax Appellate Tribunal hasbeen partially accepted by the Tribunal in I.T.A. No. 76/Coch/2012concerning the assessment year 2008-2009. It is aggrieved by thisorder, the Revenue has filed this appeal. 2. The questions of law framed for consideration are as follows: 1. In the facts and circumstances of the case, has not theTribunal erred in correctly carrying out the directions of thisHon'ble Court when it decided the appeal without consideringvital evidences brought on record by the Assessing Officer?Tribunal erred in correctly carrying out the directions of thisHon'ble Court when it decided the appeal without consideringvital evidences brought on record by the Assessing Officer? 2. Is not the decision rendered by the Tribunal mainly relying ona discredited cash flow statement and observing that withoutexpending substantial amounts, the Assessee could not haverealized such high price perverse?a discredited cash flow statement and observing that withoutexpending substantial amounts, the Assessee could not haverealized such high price perverse? 3. We heard the learned counsel for the Revenue and considered the submissions made. 4. In Annexure E order passed by the Tribunal, the relevant findings read as follows: “8. We have heard the rival contentions and perused the factsand records of the case. It is a fact that the assessee has filed adetailed cash flow shown different sources from which the money hasbeen brought in. The assessee also has explained that during thosedays bank accounts were not so common and large families use tokeep cash with themselves as most of the receipts were fromagriculture and other allied sources. The fact that withoutimprovements the assessee would not have received this amount isalso pointed out. The learned Dr has not raised any specific objection 3. We heard the learned counsel for the Revenue and considered the submissions made. 4. In Annexure E order passed by the Tribunal, the relevant findings read as follows: “8. We have heard the rival contentions and perused the factsand records of the case. It is a fact that the assessee has filed adetailed cash flow shown different sources from which the money hasbeen brought in. The assessee also has explained that during thosedays bank accounts were not so common and large families use tokeep cash with themselves as most of the receipts were fromagriculture and other allied sources. The fact that withoutimprovements the assessee would not have received this amount isalso pointed out. The learned Dr has not raised any specific objection to the cash flow other than the opening balance, the non banking of cashand production of records for the past 26 years from 01.04.1981onwards. The learned counsel has requested the Hon. Bench to have apragmatic approach in respect of old records as normally people miss ormisplace records after a reasonable period. In the circumstances andfacts of the case, it is evident that the assessee has made substantialimprovements to the land which is supported by year wise cash flow.The Assessing Officer has simply ignored the cash flow stating variousother reasons. The Ld. CIT(A) has considered the cash flow and in orderto compensate any probable defects and omissions has made anestimated disallowance of 40% which the learned DR during the courseof hearing has accepted as correct except for the size of the amount.However, to meet the interest of justice, the disallowance of cost ofimprovement is directed to be fixed at 45% of the cost claimed i.e., theassessee is eligible for 55% of the improvement cost claimed. This willtake care of defects pointed out by the Assessing Officer and Ld. DRincluding the opening cash in hand.” 5. On a reading of the above, it is obvious that these findings are purely factual and based on what has transpired before the Tribunal.Such findings rendered by the Tribunal, according to us, does not giverise to any question of law to be considered by this Court in an appealfiled under Section 260A of the Income Tax Act, 1961. We do not findany reason to interfere with the order impugned. Accordingly, thisappeal is dismissed. ANTONY DOMINIC, JUDGE. DAMA SESHADRI NAIDU, JUDGE.