Kerala Infrastructure Investment Fund Board, Trivandrum V. ACIT, Trivandrum

CO 12/COCH/2010

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 3152 (ITAT-COCHIN)
• Duration Of Justice: 1 year(s) 3 month(s) 1 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 09-03-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 08-12-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R SRIDHAR
• Assessee Lawyers: R SIVAKUMAR

Judgement Text

1 ITA NO. 548/COCH/2010 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKARA N(AM) I.TA NO. 548/COCH/2010 (ASSESSMENT YEAR 2005-06) ASSIST.COMMISSIONER OF INCOME-TAX, CIR.1(2) VS M/S KERALA INFRASTRUCTURE TRIVANDRUM INVESTMENT FUND BOARD FINANCE DEPARTMENT GOVERNMENT SECRETARIAT TRIVANDRUM PAN : AAAJK0192K (APPELLANT) (RESPONDENT) C.O. NO.12/COCH/2010 (ARISING OUT OF I.TA NO. 548/COCH/2010) (ASSESSMENT YEAR 2005-06) M/S KERALA INFRASTRUCTURE INVESTMENT BOARD VS THE A .C.I.T., CIR.1(2) TRIVANDRUM TRIVANDRUM (CROSS OBJECTOR) (RESPONDENT) ASSESSEE BY : SHRI R SIVAKUMAR REVENUE BY : SHRI R SRIDHAR DATE OF HEARING : 07-03-2012 DATE OF PRONOUNCEMENT : 09-03-2012 O R D E R PER N.R.S. GANESAN (JM) THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER (APPEALS)-I, TRIVANDRUM DATED 16-07-2010 FOR THE ASSESSMENT YEAR 2 ITA NO. 548/COCH/2010 2005-06. THE ASSESSEE HAS FILED CROSS OBJECTION AGA INST THE VERY SAME ORDER OF COMMISSIONER OF INCOME-TAX(A). THEREFORE, WE HEARD THE APPEAL OF THE REVENUE AND THE CROSS OBJECTION OF THE ASSESSEE TOGETHER AN D ARE DISPOSING OF THE SAME BY THIS COMMON ORDER. 2. THE ONLY ISSUE ARISES FOR CONSIDERATION IN THE D EPARTMENTAL APPEAL IS WHETHER THE ASSESSEE HAS COMMENCED ITS BUSINESS OR NOT? BOTH THE REPRESENTATIVES FOR THE ASSESSEE AS WELL AS THE REV ENUE BROUGHT TO THE NOTICE OF THE BENCH THAT IN THE ASSESSEES OWN CASE THIS TRIB UNAL FOR THE ASSESSMENT YEARS 2004-05, 2000-01, 2001-02, 2002-03 AND 2003-04 HAS FOUND THAT THE ASSESSEE HAS COMMENCED ITS BUSINESS. THE LD.REPRESENTATIVE FOR THE ASSESSEE HAS FILED COPY OF THE ORDER OF THIS TRIBUNAL IN ITA NOS.751(C OCH)/2007, 814, 815, 816 & 817(COCH)/2008 ORDER DATED 23-04-2009. THE LD.REPRES ENTATIVE FOR THE ASSESSEE HAS ALSO FILED THE COPY OF THE JUDGMENT OF THE KERAL A HIGH COURT IN THE ASSESSEES OWN CASE WHICH HAS APPROVED THE ORDER OF THIS TRIBU NAL. AFTER GOING THROUGH THE ORDER OF THIS TRIBUNAL AND THE JUDGMENT OF THE HIGH COURT, THE LD.DR SUBMITTED THAT THE ASSESSEE HAS COMMENCED ITS BUSINESS WHEN I T RAISED THE FUNDS FROM PUBLIC THROUGH ISSUE OF BONDS. 3. WE HAVE ALSO CAREFULLY GONE THROUGH THE JUDGMENT OF THE KERALA HIGH COURT IN THE ASSESSEES OWN CASE IN ITA NO.1779 OF 2009 JUDGMENT DATED 11-12- 2009. THE KERALA HIGH COURT FOUND THAT IT CANNOT BE SAID THAT THE BUSINESS CAN BE SAID TO COMMENCED ONLY AFTER THE FIRST PROJECT IS F INANCED. THE KERALA HIGH COURT FURTHER OBSERVED THAT THE BUSINESS COMMENCED WHEN T HE RESPONDENT RAISED FUNDS FROM PUBLIC THROUGH BONDS ISSUE AND WHEN THEY WERE READY WITH FUNDS TO DEPLOY FOR INFRASTRUCTURE PROJECT WHICH IS THE BUSI NESS OF THE ASSESSEE. THE JUDGMENT OF THE KERALA HIGH COURT IS BINDING ON THIS TRIBUNAL. THEREFORE, BY 3 ITA NO. 548/COCH/2010 RESPECTFULLY FOLLOWING THE JUDGMENT OF THE KERALA HI GH COURT AND FOR THE REASONS STATED THEREIN WE UPHOLD THE ORDER OF THE COMMISSIO NER OF INCOME-TAX(A). 4. THE ASSESSEE HAS FILED THE CROSS OBJECTION ONLY TO SUPPORT THE ORDER OF COMMISSIONER OF INCOME-TAX(A). THEREFORE, IT BECOME S INFRUCTUOUS. 5. IN THE RESULT, THE APPEAL OF THE REVENUE AS WELL AS THE CROSS OBJECTION OF THE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 09 TH DAY OF MARCH, 2012. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 09 TH MARCH, 2012 PK/- COPY TO: 1. ASSIST.COMMISSIONER OF INCOME-TAX, CIR.1(2), TRIVAN DRUM 2. M/S KERALA INFRASTRUCTURE INVESTMENT FUND BOARD, FIN ANCE DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM 3. THE COMMISSIONER OF INCOME-TAX(A)-I, TRIVANDRUM 4. THE COMMISSIONER OF INCOME-TAX, TRIVANDRUM 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH