THE COMMR. OF INCOME TAX,TVM. vs. JACOB CHERIYAN KOTTAYAM

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ITR/2/1998HC KeralaKLHC01014673199827 November 2008Bench: HONOURABLE MR.JUSTICE HARUN-UL-RASHID,HONOURABLE MR.JUSTICE C.N.RAMACHANDRAN NAIR3 pages
AI SummaryPartly Allowed

What did the High Court hold?

The High Court held that the issue raised in this Tax Reference is covered against the revenue and in favour of the assessee, as per the finding in the judgment of CIT v. Hotel Ambassador, (2002) 253 I.T.R. 430. Since the assessee was a partner in the said Hotel Ambassador, the Court disposed of the reference by answering the question referred in favour of the assessee and against the revenue. The operative direction is to answer the referred question in favour of the assessee. No issue was expressly left undecided.

What were the facts?

This is a Tax Reference filed by the Commissioner of Income Tax, Trivandrum, against an order of the Income Tax Appellate Tribunal (ITAT), Cochin Bench, in ITA No. 736/97, which arose from RA No. 65/1997. The respondent is Sri. Jacob Cheriyan, who was a partner in Hotel Ambassador, Kottayam. The High Court of Kerala is disposing of this reference based on a prior judgment concerning the same issue for the same assessee in CIT v. Hotel Ambassador, (2002) 253 I.T.R. 430. The procedural history indicates that the ITAT passed an order which is under challenge, and the Revenue has filed this reference to the High Court.

What were the issues?

1. Whether the High Court should decide the reference in favour of the assessee based on a previous judgment of the same High Court concerning the same assessee and the same issue. Assessee's Contention: The assessee's case is that the issue stands covered against the revenue and in favour of the assessee by the judgment in CIT v. Hotel Ambassador, (2002) 253 I.T.R. 430, where the assessee was a partner in the hotel. Therefore, the reference should be answered in their favour. Revenue's Contention: The judgment does not explicitly record any specific arguments made by the revenue in this particular reference. However, the fact that the revenue has filed this reference implies a disagreement with the ITAT's order and a desire to have the question of law decided in their favour.

AI-generated summary — verify with the full judgment below

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 27TH NOVEMBER 2008 / 6TH AGRAHAYANA 1930 ITR.No. 2 of 1998() ------------------- AGAINST THE ORDER IN ITA 736/97 IN RA.65/1997 of I.T.A.TRIBUNAL,COCHIN BENCH .................... APPLICANT(S): -------------- THE COMMISSIONER OF INCOME TAX, TRIVANDRUM. BY ADV. SRI.P.K.R.MENON, SENIOR ADVOCATE RESPONDENT(S): --------------- SRI. JACOB CHERIYAN, KOTTYAM (DIED) ADDL. 2. ANNAMMA CHERIAN, WIFE OF LAGTE JACOB CERIAN, HOTEL AMBASSADOR, KOTTAYAM, ADDL. R2 IS IMPLEADED AS PER ORDER DATED 4.11.2003 ON CMP 2128/2003 R2 BY ADV. SRI.JOHN RAMESH K.I.JOHN THIS TAX REFERENCE HAVING BEEN FINALLY HEARD ON 27/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

C .N. RAMACHANDRAN NAIR & HARUN-UL-RASHID, JJ. -------------------------------------------- I.T.R. No. 2 OF 1998 -------------------------------------------- Dated this the 27th day of November, 2008 JUDGMENT Ramachandran Nair,J. Since the issue raised is covered against the revenue and in favour of assessee, vide finding in the last but one paragraph of judgment in CIT V. HOTEL AMBASSADOR, (2002) 253 I.T.R. 430, and since assessee himself was a partner of the said Hotel, reference is disposed of answering the question referred in favour of the assessee and against the revenue. A copy of this judgment under the seal of the High Court and signature of Registrar-General shall be forwarded to the Income tax Appellate Tribunal, Cochin Bench. (C.N.RAMACHANDRAN NAIR) Judge. (HARUN-UL-RASHID) Judge. kk

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