V.K.NATESAN V. THE COMMISSIONER OF INCOME TAX

ITA/155/2009

AI Insights

The case involves an appeal by V.K. Natesan against the order of the Income Tax Appellate Tribunal, Cochin Bench, which assessed his income for the year 2004-05 significantly higher than declared. The appellant had declared an income of Rs.6,86,025, whereas the assessing authority determined it to be Rs.23,12,100, categorizing a portion as short term capital gains from the sale of shares in Federal Bank Limited. The appellant contested this classification, claiming the gains were long term capital gains. The Tribunal's decision was challenged in the High Court, which found the appeal to be non-maintainable as it did not involve a substantial question of law.

• Counselvise Citation: [2010] 140 COUNSELVISE.COM (IT) 699145 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 28-06-2010
• Assessment Year: misc
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: P K MENON
• Assessee Lawyers: P BALAKRISHNAN
• Keywords: Capital gains tax; Income tax appellate tribunal; Long Term Capital Gain; Short Term Capital Gains; Federal Bank Limited
• Section: 260A

Judgement Text

" IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 28TH JUNE 2010 / 7TH ASHADHA 1932 ITA.No. 155 of 2009 ---------------------- ITA.513/2007 IF THE INCOME TAX APPELLATE TRIBUNAL,COCHIN BENCH .................... APPELLANT/APPELLANT -------------------------- V.K.NATESAN, VELLAPALLY HOUSE, KANICHUKULANGARA, ALLEPPEY. BY ADV. SRI.P.BALAKRISHNAN (E) RESPONDENT/RESPONDENT ------------------------------- THE COMMISSIONER OF INCOME TAX, CENTRAL, COCHIN. BY SRI.P.K.RAVINDRANATHA MENON, SENIOR ADVOCATE SR.COUNSEL, GOVT. OF INDIA (TAXES) THIS INCOME TAX APPEAL HAVING COME UP FOR ADMISSION ON 28/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.Chelameswar, C.J. & P.N.Ravindran, J. ------------------------------------------ I.T.A. No.155 of 2009 ------------------------------------------ Dated this the 25th day of June, 2010 JUDGMENT J.Chelameswar, C.J. This is an appeal preferred under Section 260A of the Income Tax Act, 1961 aggrieved by the order dated 8th August, 2008 in ITA No.513/Coch/2007 on the file of the Income Tax Appellate Tribunal, Cochin Bench. The assessment year is 2004-05. 2. For the said assessment year the appellant herein filed return declaring an income of Rs.6,86,025/- whereas the assessing authority came to the conclusion that the appellant had a total income of Rs.23,12,100/- assessable to tax. Out of the abovementioned amount, an amount of Rs.13,99,528/- was held to be an income of the appellant herein falling under the head of short term capital gains. 3. It is the abovementioned conclusion of the assessing authority which is the subject matter of dispute in the instant appeal. ITA No.155 of 2009 - 2 - 4. According to the appellant, the abovementioned amount represents the long term capital gain of the appellant accrued on account of the sale of shares held by him in the Federal Bank Limited. According to him, a total of 5750 shares shares were held by the appellant, his wife, daughter and son in the following manner: “Belongs to V.K.Natesan 1150 S.Preethy 1150 VP Vandana 1150 V.N.Tushar 2300 -------- Total 5750” 5. The appellate Tribunal recorded that though the appellant herein was asked to appear before the assessing authority, the appellant could not appear before the assessing officer and did not adduce any evidence though he was permitted to produce evidence to substantiate his claim. 6. In the background of the abovementioned fact, the instant appeal is filed framing the following questions for consideration of this Court: ITA No.155 of 2009 - 3 - “A. Whether on the facts and in the circumstances of the case the Tribunal is correct in law and fact in assessing the capital gains tax arising out of the sale of 5750 shares of the Federal Bank in the hands of the appellant as short term capital gains? B. Whether on the facts and in the circumstances of the case the Tribunal is correct in law and fact in assessing the gains arising out of the sale proceeds of 5750 shares of the Federal Bank as short terms capital gains?” 7. Section 260A(1) of the Income Tax Act reads as follows: “An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal before the date of establishment of the National Tax Tribunal, if the High Court is satisfied that the case involves a substantial question of law.” 8. It can be seen from the above that an appeal to this Court is maintainable if only this Court is satisfied that the case involves a substantial question of law. The questions extracted above, by no stretch of imagination can be ITA No.155 of 2009 - 4 - categorised as substantial question of law. The appellant seeks a rehearing on the questions of fact. In the circumstances, we do not see any reason to entertain this appeal. The appeal is, therefore, dismissed at the admission stage. J.Chelameswar, Chief Justice P.N.Ravindran, Judge vns "