THE COMMISSIONER OF INCOME TAX, TVM. vs. M/S.STANDARD CASHEW INDUSTRIES, KOLLAM

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & THE HONOURABLE MR. JUSTICE ASHOK MENON MONDAY ,THE 28TH DAY OF JANUARY 2019 / 8TH MAGHA, 1940 ITR.No. 5 of 2008 R.A.NO. 3/COCH/1997 ARISING OUT OF ITA NO.93/COCH/91 of I.T.A.TRIBUNAL,COCHIN BENCH (ASSESSMENT YEAR 1984-85) APPLICANT : THE COMMISSIONER OF INCOME TAX, THIRUVANANTHAPURAM. BY ADVS. SRI.P.K.R.MENON,SENIOR COUNSEL, GOI(TAXES) SRI.JOSE JOSEPH SC FOR INCOME TAX RESPONDENT/S: M/S.STANDARD CASHEW INDUSTRIES, KOLLAM. THIS INCOME TAX REFERENCE HAVING BEEN FINALLY HEARD ON 28.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

ITR 5/08 -2- K.VINOD CHANDRAN & ASHOK MENON, JJ. ------------------------------------------- ITR No.5 of 2008 ------------------------------------------- Dated this the 28th day of January, 2019 O R D E R Vinod Chandran, J. We see from the order of the Income Tax Appellate Tribunal and the questions referred by it that the questions are essentially on facts. The assessee is a firm dealing in cashew. There were purchase of cashew kernels and sale of the same by export and also in the local market. The assessee had claimed cost of kernels per pound at Rs.12.02, which included cost of the container also. The Assessing Officer estimated it at Rs.14/- per pound adding the value of the container. The assessee's specific case is that the value of the container was included in the cost per pound of the kernels.

ITR 5/08 -3- This was accepted by the Tribunal, which is challenged by the revenue. 2. One other question was as to the percentage of dry-age claimed by the assessee. The assessee claimed it at 10%, while the Assessing Officer allowed it only at 5%. The Tribunal found that there was absolutely no material to so reduce the dry-age as claimed by the assessee. The Tribunal looked at the quantitative assessments for the earlier years and found it to be varying between 7.5% and 10%. In such circumstances, the Tribunal directed allowance of the dry-age to be granted at 7.5%. 3. The other issue is on an additional ground raised by the assessee. The additional issue raised was as against an unaccounted sales estimated at Rs.10,16,000/-. The same was on the basis of the purchases made and the sales revealed

ITR 5/08 -4- in the accounts. The Tribunal computed it on the basis of bags of goods, as admitted by the assessee, an apt exercise at the hands of the last fact finding authority. 4. In computation, in fact, the Tribunal allowed only 5% dry-age. The Tribunal found the total unaccounted sales coming to only a value of Rs.7,38,400/-. The additional ground was allowed to that extent reducing it to what was found by the Tribunal. 5. Despite the reference being at the instance of this Court in an OP reference, we do not think that the questions as framed by the Tribunal raise any question of law. We also do not think that the factual adjudication as made by the Tribunal was in any manner perverse. We hence answer the reference made by the Tribunal against

ITR 5/08 -5- the revenue. We dispose of the Reference as above. A copy of this order under the seal of this court and the signature of the Registrar will be forwarded to the Tribunal, as required by law. Sd/- K.VINOD CHANDRAN JUDGE Sd/- ASHOK MENON JUDGE

ITR 5/08 -6- APPENDIX PETITIONER'S ANNEXURES ANNEXURE A COPY OF ASSESSMENT ORDER PASSED BY THE INCOME TAX OFFICER, A-WARD, QUILON ANNEXURE B COPY OF APPELLATE ORDER PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS), TRIVANDRUM. ANNEXURE C COPY OF ORDER PASSED BY THE INCOME TAX APPELLATE AUTHORITY, COCHIN BENCH. [True Copy jg