Harrison Malayalam Ltd., Cochin V. ACIT, Cochin

ITA 706/COCH/2008

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 64973 (ITAT-COCHIN)
• Duration Of Justice: 4 year(s) 5 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 08-10-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 02-06-2008
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUSAN GEORGE
• Assessee Lawyers: P R KRISHNAKUMAR
• Section: 43B; 37(1)

Judgement Text

1 ITA NO. /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.T.A NO. 706/COCH/2008 (ASSESSMENT YEAR 2004-05) HARRISONS MALAYALAM LTD VS THE A.C.I.T., CIR.1( 1) BRISTOW ROAD, W.ISLAND ERNAKULAM KOCHI 682 003 PAN : AAACH6769C (APPELLANT) (RESPONDENT) I.T.A NO. 730/COCH/2008 (ASSESSMENT YEAR 2004-05) THE DY.C.I.T., CIR.1(1) VS HARRISONS MALAYALAM L TD ERNAKULAM KOCHI-3 (APPELLANT) (RESPONDENT) TAXPAYER BY : SHRI P.R. KRISHNAKUMAR RESPONDENT BY : SMT. SUSAN GEORGE DATE OF HEARING : 08-10-2012 DATE OF PRONOUNCEMENT : 16-11-2012 O R D E R PER N.R.S. GANESAN (JM) BOTH THE APPEALS OF THE TAXPAYER AND THE REVENUE A RE DIRECTED AGAINST THE VERY SAME ORDER OF C.I.T.(A) DATED 28-03-2008 AND PER TAINS TO ASSESSMENT YEAR 2004-05. THEREFORE, WE HEARD THE SAME TOGETHER AND DISPOSE OF THE SAME BY THIS COMMON ORDER. 2 ITA NO. /COCH/2010 2. SHRI P.R. KRISHNAKUMAR, THE LD.REPRESENTATIVE FOR THE TAXPAYER SUBMITTED THAT THE FIRST GROUND IN THE TAXPAYERS APPEAL IS W ITH REGARD TO CONTRIBUTION MADE TO PROVIDENT FUND AND ESI. ACCORDING TO THE LD.REP RESENTATIVE ALL THE PAYMENTS WERE MADE BEFORE THE DUE DATE FOR FILING OF THE RET URN U/S 139(1) OF THE ACT. THEREFORE, THE CLAIM OF THE TAXPAYER HAS TO BE ALLO WED. ON A QUERY FROM THE BENCH WHETHER THE ASSESSING OFFICER VERIFIED THE DA TE OF PAYMENTS, THE LD.REPRESENTATIVE FOR THE TAXPAYER SUBMITTED THAT T HE ASSESSING OFFICER HAD NO OCCASION TO VERIFY THE DATES OF PAYMENT. WE HEARD THE LD.DR ALSO. NOW IT IS WELL SETTLED AFTER DELETION OF PROVISO TO SECTION 43B TH AT ALL PAYMENTS MADE WITHIN THE DUE DATE FOR FILING THE RETURN OF INCOME TOWARDS PR OVIDENT FUND AND ESI CONTRIBUTION HAS TO BE ALLOWED AS DEDUCTION. HOWEV ER, THE LD.REPRESENTATIVE FOR THE TAXPAYER HAS VERY FAIRLY SUBMITTED THAT THE ASS ESSING OFFICER HAD NO OCCASION TO VERIFY THE DATES OF PAYMENTS. ACCORDINGLY, THE ORDERS OF THE LOWER AUTHORITIES ARE SET ASIDE AND THE ISSUE IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL VERIFY THE DATES OF EAC H PAYMENT TOWARDS CONTRIBUTION FOR ESI AND PROVIDENT FUND AND IF THE PAYMENTS ARE MADE BEFORE THE DUE DATE FOR FILING THE RETURNS OF INCOME U/S 139(1), THE SAME H AS TO BE ALLOWED WHILE COMPUTING THE TOTAL INCOME. 3. THE NEXT GROUND OF APPEAL IS WITH REGARD TO DISA LLOWANCE OF RS. 2,53,751. ACCORDING TO THE LD.REPRESENTATIVE, THE TAXPAYER CL AIMED LOSS IN SALE OF GREVILLEA TREES AS CAPITAL LOSS. HOWEVER, THE ASSESSING OFFI CER ALLOWED THE SAME AS BUSINESS LOSS. THE COMMISSIONER OF INCOME-TAX(A) ALSO CONFIR MED THE SAME. ACCORDING TO THE LD.REPRESENTATIVE, THE CLAIM OF THE TAXPAYER HA S TO BE ALLOWED AS CAPITAL LOSS. 4. ON THE CONTRARY, THE LD.DR, SMT. SUSAN GEORGE SUB MITTED THAT THE VERY SAME ISSUE CAME UP BEFORE THIS TRIBUNAL IN THE TAXP AYERS OWN CASE FOR THE 3 ITA NO. /COCH/2010 ASSESSMENT YEAR 2005-06. THIS TRIBUNAL AFTER REFERR ING TO THE JUDGMENT OF THE KERALA HIGH COURT IN COMMISSIONER OF INCOME-TAX VS RA JAGIRI RUBBER AND PRODUCE CO LTD (1991) 189 ITR 182 (KER) AND THE JUDGMENT OF THE SUPREME COURT IN KALPETTA ESTATE LTD VS COMMISSIONER OF INCOME-TAX (19 96) 221 ITR 601 (SC) FOUND THAT ON SALE OF RUBBER TREE THERE CANNOT BE A CASE OF CAPITAL GAIN. IN VIEW OF THE ABOVE DECISION OF THE TRIBUNAL IN TAXPAYERS OWN CA SE FOR THE ASSESSMENT YEAR 2005-06, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE CLAIM OF THE TAXPAYER CANNOT BE ALLOWED AS CAPITAL LOSS. ACCORDINGLY THE ORDER OF THE LOWER AUTHORITY ON THIS ISSUE IS CONFIRMED. 5. NOW COMING TO THE DEPARTMENTAL APPEAL, THE ONLY ISSUE ARISES FOR CONSIDERATION IS DISALLOWANCE OF RS.19,71,181 U/S 1 4A R.W.S 37(1) OF THE ACT. 6. THE LD.DR, SMT. SUSAN GEORGE SUBMITTED THAT FOR T HE ASSESSMENT YEARS 2000-01 TO 2003-04 IN ITA NOS 320,321,63&64(COCH)/200 7 THIS TRIBUNAL HAD AN OCCASION TO CONSIDER THE VERY SAME ISSUE AND THE TR IBUNAL DECIDED THE ISSUE IN FAVOUR OF THE TAXPAYER. HOWEVER, THE REVENUE HAS F ILED APPEAL BEFORE THE HIGH COURT AND THE SAME IS STILL PENDING. WE HAVE HEARD THE LD.REPRESENTATIVE FOR THE TAXPAYER ALSO. ADMITTEDLY, THIS TRIBUNAL HAD AN OC CASION TO DECIDE THE VERY SAME ISSUE FOR THE ASSESSMENT YEARS 2000-01 TO 2003-04. T HE APPEALS FILED BY THE REVENUE ARE SAID TO BE PENDING BEFORE THE HIGH COUR T. SINCE THE CO-ORDINATE BENCH OF THIS TRIBUNAL HAS ALREADY TAKEN A DECISION IN RESPECT OF THE VERY SAME ISSUE CONFIRMING THE SIMILAR ORDER OF THE COMMISSIO NER OF INCOME-TAX(A) AND IT IS NOBODYS CASE THAT THE ORDER OF THE TRIBUNAL IS REV ERSED BY THE HIGH COURT WE DO NOT FIND ANY REASON TO TAKE A DIFFERENT VIEW. THERE FORE, BY FOLLOWING THE ORDER OF THIS TRIBUNAL FOR THE ASSESSMENT YEARS 200-01 TO 200 3-04 THE ORDER OF THE COMMISSIONER OF INCOME-TAX(A) ON THIS ISSUE IS CONFI RMED. 4 ITA NO. /COCH/2010 7. IN THE RESULT, THE APPEAL OF THE TAXPAYER IN ITA NO.706/COCH/2008 IS PARTLY ALLOWED AND THAT OF THE REVENUE IN ITA NO.730/COCH/ 2008 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 16 TH NOVEMBER, 2012. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 16 TH NOVEMBER, 2012 PK/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE COMMISSIONER OF INCOME-TAX 4. THE COMMISSIONER OF INCOME-TAX(A) 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH