M.m.publications Ltd,P.b v. Sajeev George

IN THE HIGH COURT OF KERALA AT ERNAKULAMPRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & THE HONOURABLE MR. JUSTICE ASHOK MENON TUESDAY ,THE 16TH DAY OF OCTOBER 2018 / 24TH ASWINA, 1940 ITA.No. 185 of 2014 AGAINST THE ORDER/JUDGMENT IN ITA 26/2014 ofI.T.A.TRIBUNAL,COCHIN BENCH DATED 04-04-2014 APPELLANT/S: M.M.PUBLICATIONS LTD,P.B NO 226, ERAYILKADAVU, KOTTAYAM 686001, REPRESENTED BY ITS CHIEF GENERAL MANAGER, MR. V. SAJEEV GEORGE REPRESENTED BY ITS CHIEF GENERAL MANAGER, MR. BY ADVS.SRI.M.GOPIKRISHNAN NAMBIARSRI.JOSON MANAVALANSRI.K.JOHN MATHAISRI.KURYAN THOMASSRI.P.BENNY THOMASSRI.P.GOPINATH RESPONDENT/S: COMMISSIONER OF INCOME TAX,PUBLIC LIBRARY BUILDINGS, SASTRI ROAD, KOTTAYAM686001 BY ADVS.SRI.P.K.R.MENON,SR.COUNSEL, GOI(TAXES)SRI.JOSE JOSEPH SC FOR INCOME TAX THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 16.10.2018, ALONG WITH ITA.187/2014, ITA.200/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 16.10.2018, ALONG WITH ITA.187/2014, ITA.200/2014, THE I.T.A Nos.185/2014, 187/2014 & 200/2014 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & THE HONOURABLE MR. JUSTICE ASHOK MENON TUESDAY ,THE 16TH DAY OF OCTOBER 2018 / 24TH ASWINA, 1940ITA.No. 187 of 2014 AGAINST THE ORDER/JUDGMENT IN ITA 27/2014 ofI.T.A.TRIBUNAL,COCHIN BENCH DATED 04-04-2014 APPELLANT/S: M.M.PUBLICATIONS LTD,P.B.NO.226, ERAYILKADAVU, KOTTAYAM - 686 001,REPRESENTED BY ITS CHIEF GENERAL MANAGER,MR.V.SAJEEV GEORGE. BY ADVS.SRI.M.GOPIKRISHNAN NAMBIARSRI.JOSON MANAVALANSRI.K.JOHN MATHAISRI.KURYAN THOMASSRI.P.BENNY THOMASSRI.P.GOPINATH RESPONDENT/S: COMMISSIONER OF INCOME TAXPUBLIC LIBRARY BUILDINGS, SASTRI ROAD,KOTTAYAM - 686 001. BY ADVS.SRI.P.K.R.MENON,SR.COUNSEL, GOI(TAXES)SRI.JOSE JOSEPH SC FOR INCOME TAXSRI.P.K.R.MENONSR.COUNSEL GOITAXES THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 16.10.2018, ALONG WITH ITA.185/2014, ITA.200/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: I.T.A Nos.185/2014, 187/2014 & 200/2014 3 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & THE HONOURABLE MR. JUSTICE ASHOK MENON TUESDAY ,THE 16TH DAY OF OCTOBER 2018 / 24TH ASWINA, 1940ITA.No. 200 of 2014 AGAINST THE ORDER/JUDGMENT IN ITA 26/2014 ofI.T.A.TRIBUNAL,COCHIN BENCH DATED 04-04-2014 APPELLANT/S: THE COMMISSIONER OF INCOME TAX,KOTTAYAM. BY ADVS.SRI.P.K.R.MENON,SR.COUNSEL, GOI(TAXES)SRI.JOSE JOSEPH SC FOR INCOME TAX RESPONDENT/S: M/S M.M.PUBLICATIONS LTD,ERAYILKADAVU,KOTTAYAM.PIN 686001.BY ADVS.SRI.P.BENNY THOMASSRI.JOSON MANAVALANSRI.K.JOHN MATHAISRI.KURYAN THOMASSRI.M.GOPIKRISHNAN NAMBIARSRI.P.GOPINATH OTHER PRESENT: SRI PKR MENON SR COUNSEL FOR GOI TAXES THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 16.10.2018, ALONG WITH ITA.187/2014, ITA.185/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 4 I.T.A Nos.185/2014, 187/2014 & 200/2014 J U D G M E N T Vinod Chandran, J The appeals are by the assessee and the revenue.The assessee has filed appeals from the common order ofthe Tribunal for the assessment years 2008-09 and 2009-2010. The Revenue has filed an appeal from the very samecommon order, but however, only for the assessment year2008-09. The issue agitated is with respect to the dis-allowance of expenses incurred for foreign travel of thestaff of the assessee company claimed under Section 37 ofthe Income Tax Act, 1956 (for brevity "the IT Act" only).2. The Assessing Officer, for the year 2008-09,disallowed 100% of the expenses and in certain casesfound the foreign travel to be partly business and partlypersonal and allowed 50% of the allowances claimed. Inthe year 2009-10, the Assessing officer resorted to themethod of 20% dis-allowance for all the expenses incurredon that count, finding that there is a personal elementin all these foreign travels. The Assessing Officer found that though foreign trips cannot be termed to be pleasuretrips or family trips it can also not be found that theywere solely for the purpose of the business. It is insuch circumstance that 1/5[th] of the expenses claimed onforeign travels were dis-allowed. The First AppellateAuthority followed the decision of the Tribunal in thecase of the assessee itself on the very same aspect forthe year 2005-06 and 2006-07 and permitted full allowanceof expenses incurred as expenditure under Section 37 ofthe IT Act. Appeals was filed by the Revenue before theTribunal. 3. We find that the Tribunal refused to followthe judgment of the earlier Bench of equal strength onthe ground that the facts differ from year to year. Itwas also noticed that the Assessing Officer has givenreasons insofar as the dis-allowance for the presentyears. In any event, orders of the Tribunal for theyears 2005-06 and 2006-07 were set aside by us in ITANos.285/2010, 335/2010 & 164/2012. We in the saiddecision, confined it to the allowance as granted by theFirst Appellate Authority whose orders were found to be elaborate and contained detailed discussion on theindividual facts with respect to each of the foreigntrips. We do not find any reason to interfere with theorders of the Tribunal in the appeals filed by theassessee for the year 2008-09 and 2009-10 in both ofwhich the Tribunal confined the dis-allowance to 1/5[th] ofthe total expenses claimed. 4. In this context, we have to notice the appealof the revenue. As was noticed herein above, for theyears 2009-10, the Assessing Officer himself had granted1/5[th] of the expenses as dis-allowances which was restoredby the Tribunal after setting aside the order of theFirst appellate Authority. In the year 2008-09, theAssessing Officer had made dis-allowance of 50% and 100%in various instances of the expenses claimed. The FirstAppellate Authority had allowed the claim in toto. TheTribunal while considering the appeal of the revenueconfined the dis-allowance to 20% as has been done in theyear 2009-10. The Revenue has filed the appealcontending that 100% dis-allowance has to be made in allinstances. We do not think that the appeal can be m sustained especially since the Assessing Officer himselfhad in certain instances granted 50% dis-allowance. TheTribunal also noticed the fact that, for the next year,the Assessing Officer had disallowed only 20% of theexpenses claimed. The very same procedure was adoptedfor the year 2008-09 also. We do not think any question of law arises from the order of the Tribunalsince the same is on an appreciation of facts as has beenset out in the order of assessment. We hence do not thinkany interference is called for to the Tribunal's order inthe appeal of the Revenue also. The appeals would stand rejected. No costs. Sd/- K.VINOD CHANDRAN JUDGE Sd/- ASHOK MENON APPENDIX OF ITA 185/2014 PETITIONER'S/S EXHIBITS: ANNEXURE ATRUE COPY OF THE ASSESSMENT ORDER FOR THE YEAR 2008-09 DATED 29.12.2010 ISSUED TO THE APPELLANT BY THE DEPUTY COMMISSIONER OF INCOME TAX,CIRCLE 1, KOTTAYAMTHE YEAR 2008-09 DATED 29.12.2010 ISSUED TO THE APPELLANT BY THE DEPUTY COMMISSIONER OF INCOME TAX,CIRCLE 1, KOTTAYAM ANNEXURE B TRUE COPY OF THE ORDER DATED 15.11.2013ISSUED TO THE APPELLANT BY THE COMMISSIONER OF INCOME TAX (APPEALS)-V KOCHI.ISSUED TO THE APPELLANT BY THE COMMISSIONER OF INCOME TAX (APPEALS)-V KOCHI. ANNEXURE CTRUE COPY OF THE APPEAL MEMORANDUM DATED 23.1.2014 FILED BY THE DEPARTMENTBEFORE THE INCOME TAX APPELLATE TRIBUNAL.DATED 23.1.2014 FILED BY THE DEPARTMENTBEFORE THE INCOME TAX APPELLATE TRIBUNAL. ANNEXURE DTRUE COPY OF THE ARGUMENT NOTE UN-DATEDFILED BY THE APPELLANT BEFORE THE INCOME TAX APPELLATE.FILED BY THE APPELLANT BEFORE THE INCOME TAX APPELLATE. ANNEXURE E ANNEXURE B TRUE COPY OF THE ORDER DATED 15.11.2013ISSUED TO THE APPELLANT BY THE COMMISSIONER OF INCOME TAX (APPEALS)-V KOCHI.ISSUED TO THE APPELLANT BY THE COMMISSIONER OF INCOME TAX (APPEALS)-V KOCHI. ANNEXURE CTRUE COPY OF THE APPEAL MEMORANDUM DATED 23.1.2014 FILED BY THE DEPARTMENTBEFORE THE INCOME TAX APPELLATE TRIBUNAL.DATED 23.1.2014 FILED BY THE DEPARTMENTBEFORE THE INCOME TAX APPELLATE TRIBUNAL. ANNEXURE DTRUE COPY OF THE ARGUMENT NOTE UN-DATEDFILED BY THE APPELLANT BEFORE THE INCOME TAX APPELLATE.FILED BY THE APPELLANT BEFORE THE INCOME TAX APPELLATE. ANNEXURE E TRUE COPY OF THE ORDER DATED 4.4.2014 ISSUED TO THE APPELLANT BY THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH ALONG WITH CERTIFIED COPY.ISSUED TO THE APPELLANT BY THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH ALONG WITH CERTIFIED COPY. APPENDIX OF ITA 187/2014 PETITIONER'S/S EXHIBITS: ANNEXURE ATRUE COPY OF THE ASSESSMENT ORDER FOR THE YEAR 2009-10 DATED 28.12.2011 ISSUED TO THE APPELLANT BY THE DEPUTY COMMISSIONER OF INCOME TAX,CIRCLE 1, KOTTAYAM. ANNEXURE BTRUE COPY OF THE ORDER DATED 15.11.2013ISSUED TO THE APPELLANT BY THE COMMISSIONER OF INCOME TAX (APPEALS)-V,KOCHI. ANNEXURE C TRUE COPY OF THE APPEAL MEMORANDUM DATED 23.1.2014 FILED BY THE DEPARTMENTBEFORE THE INCOME TAX APPELLATE TRIBUNAL. ANNEXURE DTRUE COPY OF THE ARGUMENT NOTE UN-DATEDFILED BY THE APPELLANT BEFORE THE INCOME TAX APPELLATE.FILED BY THE APPELLANT BEFORE THE INCOME TAX APPELLATE. ANNEXURE ETRUE COPY OF THE ORDER DATED 4.4.2014 ISSUED TO THE APPELLANT BY THE INCOME TAX APPELLATE TRIBUNAL,COCHIN BENCH. APPENDIX OF ITA 200/2014 PETITIONER'S/S EXHIBITS: ANNEXURE A:ASSESSMENT ORDER U/S 143(3) INCOME TAX ACT 1961 DATED 29.12.2010 ANNEXURE B:CIT(A)S ORDER IN ITA NO. 71/KTM/CIT(A)-IV DT 15.11.2013ANNEXURE C:ITAT'S ORDER IN ITA NO.26/COCH/2014 DT 04.04.2014 CIT(A)S ORDER IN ITA NO. 71/KTM/CIT(A)-IV DT