THE COMMISSIONER OF INCOME TAX, COCHIN vs. M/S.APOLLO TYRES LTD., KOCHI.

J U D G M E N T P.R.RAMACHANDRA MENON,J: This appeal preferred by the Revenue arise from the verdict passed by the Income Tax Appellate Tribunal, Cochin Bench in I.T.A.No.252/Coch/2007 dated 5.10.2010 in respect of the assessment year 2001-2002. 2. The questions suggested by the Revenue as involving substantial questions of law are in the following terms:- “1. Whether, on the facts and in the circumstances of the case, the Tribunal is right in law in interfering with the addition of Rs.4,66,20,000/- being the amount withdrawn from Investment Fluctuation Reserve' for writing off provision for reduction in the value of GPEL by debit to P/L account for computing the book profit under Section 115 JB? 2. Whether, on the facts and in the circumstances of the case is not the provision for the above amount in the nature of a liability as envisaged in clause (c) of the Explanation below Sec.115JB(2)? 3. Whether, in the light of the amendment by way of clause (i) to Explanation to Section 115JB introduced by Finance Act 2009 with retrospective effect from ¼/2001 does the decision of the Supreme Court in HCL (305 ITR 409) hold the field and the ITAT is justified in relying on the same?”

ITA NO.67 OF 2011 :-3-: of Section 115JB of the Income Tax Act whereby certain adjustments could be effected which originally was not granted but permitted to be effected by passing a rectification order. The Learned counsel points out that the basic issue in respect of the very same assessment year is already under challenge in the appeal filed by the Revenue as I.T.A.No.68/2011 in respect of the assessment finalised under Section 143(3) of the Income Tax Act and this being the position, without prejudice to the rights and liberties of the appellant/revenue to pursue I.T.A.No. 68/2011, I.T.A.No.67/2011 could be closed. On going through the pleadings and proceedings, we find that the course suggested by the learned Standing Counsel is correct and sustainable. Accordingly, we close this I.T.A. without prejudice to the contention taken by the Revenue in I.T.A.No.68/2011 preferred in respect of the very same assessment year (2001-02). P.R.RAMACHANDRA MENON, JUDGE N.ANIL KUMAR, JUDGE MBS/