Op/13071/1999 Of She Commissioner Of Income Tax, Tvm v. M/S.standard Cashew Industries, Kollam

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 26TH JULY 2007 / 4TH SRAVANA 1929 OP.No. 13071 of 1999(S) ----------------------- AGAINST THE ORDER IN RA 3/COCH/1997 IN ITA.93/COCH/91/1991 of INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH .................... PETITIONER: ------------ THE COMMISSIONER OF INCOME TAX, TRIVANDRUM. BY STANDING COUNSEL, GOVERNMENT OF INDIA )TAXES) SRI.P.K.RAVINDRANATHA MENON (SR.) SRI.GEORGE K. GEORGE RESPONDENT: ------------- M/S. STANDARD CASHEW INDUSTRIES, KOLLAM. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 26/07/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L. DATTU, C.J. & K.T. SANKARAN, J. ---------------------------------------------------------- O.P.No.13071 of 1999-S ----------------------------------------------------------- Dated, this the 265h day of July, 2007 JUDGMENT H.L. DATTU, CJ. This is a petition filed by the Revenue under section 256(2) of the IncomeTax Act, 1961, hereinafter for the sake of brevity referred to as the Act. 2. The assessee was before the Income Tax Appellate Tribunal, CochinBench in I.T.A. No.93/1991 for the assessment year 1984-85. The Tribunal hasallowed the assessee's appeal and thereby has set aside the orders passed bythe Commissioner of Income-tax (Appeals), Trivandrum, dated 28.11.1990. 3. The Revenue had filed an application under section 256(1) of theIncome Tax Act inter alia requesting the Tribunal to state the case and refer thequestions of law for consideration and decision of this court. The Tribunal hasrejected the said application/petition. That is how the Revenue is before us in thispetition filed under section 256(2) of the Act. 4. The Revenue has raised the following questions of law. They are as under: 1. Whether, on the facts and in the circumstances of the case,and also for the reasons given by the CIT (A) in his order, theTribunal is right in law and fact in holding that “the assessingofficer again included the value of containers in estimating thevalue of Rs.14/- per pound”; “than there is an addition of thevalue containers twice” and are not the findings wrong,unsupported by materials and based on surmises? 2. Whether, on the facts and in the circumstances of the case,and in the additional ground (vide paragraph 6 of the order of theTribunal) raised, the assessee himself claims driage only at 5%, the Tribunal is justified in allowing driage at 7½% with referenceto grounds 2 and 4 in paragraph 5 of its order? 3. Whether, on the facts and in the circumstances of the case,and when the Tribunal itself finds “the above figure appears tohave been worked out before allowing the driage” and in theabsence of “any further details in support of his claim (vide thefinding in paragraph 9 of CIT(A)'s order) the Tribunal is right inlaw and fact in working out the unaccounted sales atRs.7,38,400/- and finding the same “to be quite correct”? and isnot the finding of the Tribunal wrong and unreasonable andunsupported by cogent evidence and relevant materials? 4. Whether, on the facts and in the circumstances of the case,and in the light of paragraph 9 of the order of the CIT(A) and inthe light of the finding by the CIT(A) that “The appellant'srepresentative has not filed any further details in support of hisclaim” the ground said to be additional is really an additionalground and the Tribunal is justified in allowing and consideringthe same as an additional ground? 5. Whether on the facts and in the circumstances of the case,isnot the additional ground only a pretext of a ground in view ofthe consideration of the same by the CIT(A) in paragraph9 of his order? 4. Whether, on the facts and in the circumstances of the case,and in the light of paragraph 9 of the order of the CIT(A) and inthe light of the finding by the CIT(A) that “The appellant'srepresentative has not filed any further details in support of hisclaim” the ground said to be additional is really an additionalground and the Tribunal is justified in allowing and consideringthe same as an additional ground? 5. Whether on the facts and in the circumstances of the case,isnot the additional ground only a pretext of a ground in view ofthe consideration of the same by the CIT(A) in paragraph9 of his order? 6. Whether, on the facts and in the circumstances of the case,is not the order and the consideration of the unaccounted salesand the finding in regard thereto, mostly based on thesubmissions of the assessee's representative and hence vitiatedand wrong? 5. After going through the orders passed by the Tribunal and afterperusing the questions of law framed by the Revenue, we are of the opinion thatthe questions of law raised by the Revenue requires consideration and decision by this court. Therefore we pass the following: Order i) The petition is allowed. ii) A direction is issued to the Income Tax Appellate Tribunal, Cochin Bench to state the case and refer the questions of law arising out of the orderpassed in ITA No.93/1991 for the assessment year 1984-85 as expeditiously aspossible. Ordered accordingly. H.L. DATTU, CHIEF JUSTICE. mt/ K.T. SANKARAN, JUDGE. OP 13071/1999 4 H.L. DATTU, C.J. &K.T.SANKARAN, J. O.P. 13071 OF 1999-S JUDGMENT 26.7.2007