Itr/5/2008 Of The Commissioner Of Income Tax, Tvm v. M/S.standard Cashew Industries, Kollam

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & THE HONOURABLE MR. JUSTICE ASHOK MENON MONDAY ,THE 28TH DAY OF JANUARY 2019 / 8TH MAGHA, 1940 ITR.No. 5 of 2008 R.A.NO. 3/COCH/1997 ARISING OUT OF ITA NO.93/COCH/91 ofI.T.A.TRIBUNAL,COCHIN BENCH (ASSESSMENT YEAR 1984-85) APPLICANT : THE COMMISSIONER OF INCOME TAX, THIRUVANANTHAPURAM. BY ADVS.SRI.P.K.R.MENON,SENIOR COUNSEL, GOI(TAXES)SRI.JOSE JOSEPH SC FOR INCOME TAX RESPONDENT/S: M/S.STANDARD CASHEW INDUSTRIES, KOLLAM. THIS INCOME TAX REFERENCE HAVING BEEN FINALLY HEARD ON 28.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.VINOD CHANDRAN & ASHOK MENON, JJ. -------------------------------------------ITR No.5 of 2008------------------------------------------- Dated this the 28[th] day of January, 2019 O R D E R Vinod Chandran, J. We see from the order of the Income TaxAppellate Tribunal and the questions referred by itthat the questions are essentially on facts. Theassessee is a firm dealing in cashew. There werepurchase of cashew kernels and sale of the same byexport and also in the local market. The assesseehad claimed cost of kernels per pound at Rs.12.02,which included cost of the container also. TheAssessing Officer estimated it at Rs.14/- per poundadding the value of the container. The assessee'sspecific case is that the value of the containerwas included in the cost per pound of the kernels. ITR 5/08 -3- This was accepted by the Tribunal, which ischallenged by the revenue. 2.One other question was as to the percentage of dry-age claimed by the assessee. Theassessee claimed it at 10%, while the AssessingOfficer allowed it only at 5%. The Tribunal foundthat there was absolutely no material to so reducethe dry-age as claimed by the assessee. TheTribunal looked at the quantitative assessments forthe earlier years and found it to be varyingbetween 7.5% and 10%. In such circumstances, theTribunal directed allowance of the dry-age to begranted at 7.5%.3.The other issue is on an additionalground raised by the assessee. The additionalissue raised was as against an unaccounted salesestimated at Rs.10,16,000/-. The same was on thebasis of the purchases made and the sales revealed in the accounts. The Tribunal computed it on thebasis of bags of goods, as admitted by theassessee, an apt exercise at the hands of the lastfact finding authority. 4.In computation, in fact, the Tribunalallowed only 5% dry-age. The Tribunal found thetotal unaccounted sales coming to only a value ofRs.7,38,400/-. The additional ground was allowedto that extent reducing it to what was found by theTribunal. 5.Despite the reference being at theinstance of this Court in an OP reference, we donot think that the questions as framed by theTribunal raise any question of law. We also do notthink that the factual adjudication as made by theTribunal was in any manner perverse. We henceanswer the reference made by the Tribunal against the revenue. We dispose of the Reference asabove. A copy of this order under the seal ofthis court and the signature of the Registrar willbe forwarded to the Tribunal, as required by law. Sd/- K.VINOD CHANDRANJUDGE Sd/-ASHOK MENONJUDGE ITR 5/08 APPENDIX [True Copy jg