Ramachandran Nair, J v. C.n.ramachandran Nair) Judge

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.P.RAY TUESDAY, THE 14TH DECEMBER 2010 / 23RD AGRAHAYANA 1932 ITA.No. 43 of 2009() ----------------------------- ITA.609/COCH/2006 of INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH .................... APPELLANT/RESPONDENT ---------------------------------------- THE COMMISSIONER OF INCOME TAX, THIRUVANANTHAPURAM. BY RI.P.K.R.MENON,SR.COUNSEL, GOI (TAXES), ADV. SRI.JOSE JOSEPH, SC FOR INCOME TAX. RESPONDENT/APPELLANT ----------------------------------------- M/S. POYILAKKADA TRUST, KOLLAM. BY ADV. SRI.P.BALAKRISHNAN, SRI.MOHAN PULIKKAL, SRI.K.C.KIRAN. THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 14/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -------------------------------------------- I. T. A. No. 43 of 2009 -------------------------------------------- Dated this the 14th day of December, 2010 JUDGMENT Ramachandran Nair, J. After hearing both sides and after going through the Tribunal'sorder we notice that the Tribunal besides quoting the Special Benchdecision of the Bombay Tribunal, has not considered or decided theissue raised in the appeal. The question raised is on the computation ofindirect cost for working out the export profit attributable to trading ofgoods. This Court has in the decision in CIT V. PARRY AGROINDUSTRIES LTD., 257 I.T.R. 41 held that the formula providedunder Section 80HHC (3) has to be applied for working out indirectcost which is defined in clause (b) of Section 80HHC(3). All what wenotice is that Tribunal has extracted the assessment order and order ofthe CIT (Appeals) and ultimately after referring to Delhi Benchdecision, the Tribunal declared that the appeal is allowed. It was theduty of the Tribunal to consider whether the indirect cost worked outby the assessing officer as modified by the CIT (Appeals) is correct or not. Since Tribunal has not considered the issue properly or has notdrawn any conclusion of it's own, we allow the appeal by setting asidethe order of the Tribunal and restore the appeal back to the file of theTribunal for fresh decision after hearing both sides. So far as thesecond question is concerned, that is interest under Section 234D of theAct, the issue is covered by our judgment in CIT V. KERALAPROTEINS AND CHEMICALS, 323 ITR 584. The Tribunal willfollow the said judgment and decide that issue also afresh. (C.N.RAMACHANDRAN NAIR)Judge.Judge. (BHABANI PRASAD RAY) Judge. kk