M/S. VANIAMPAR RUBBER CO.LTD vs. THE ASSISTANT COMMISSIONER OF INCOME

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & THE HONOURABLE MR. JUSTICE ASHOK MENON TUESDAY ,THE 11TH DAY OF DECEMBER 2018 / 20TH AGRAHAYANA, 1940 ITA.No. 277 of 2010 AGAINST THE ORDER/JUDGMENT IN ITA 875/2008 of I.T.A.TRIBUNAL,COCHIN BENCH DATED 30-03-2010 APPELLANT/S: M/S. VANIAMPAR RUBBER CO.LTD VAZHAKALA BUILDING, K.K.ROAD, KOTTAYAM-686 001. BY ADVS. SRI.JOSEPH MARKOSE (SR.) SRI.B.J.JOHN PRAKASH SRI.MATHEWS K.UTHUPPACHAN SRI.TERRY V.JAMES SRI.V.ABRAHAM MARKOS RESPONDENT/S: THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-I, KOTTAYAM. OTHER PRESENT: SRI PKR MENON SR COUNSEL FOR GOI TAXES, SRI JOSE JOSEPH SC THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 11.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

ITA No.277/2010 ::2::

J U D G M E N T Vinod Chandran, J The issue raised in this appeal is on the question of whether the Assessing Officer could have considered a claim not specifically made in the return. It is also contended that even if the Assessing Officer could not have considered the issue for reason of the revision of return not having been made at the appropriate time as provided under the statute, the First Appellate Authority or at least the Tribunal could have considered the same. On facts, we notice that the assessee was a company carrying on plantation business. The assessee had shares in one Apollo Tyres Limited which was held for 17 years and sold the previous year relevant to the assessment year. The assessee inadvertently showed the sale

ITA No.277/2010 ::3:: consideration as income from profits & gains of business. In fact, the assessee could have showed it as income from capital gains in which context it would have been exempt under Section 10(38) for reason of the shares having been held beyond the one year period. The assessee pointed out the same to the Assessing Officer and also filed a revised return. That however was beyond the period for filing the revised return. 2. The revenue relies on Goetze (India) Ltd., v. Commissioner of Income Tax [(2006) 284 ITR 323]. The learned Senior Counsel appearing for the assessee relies on National Thermal Power Co. Ltd. v. Commissioner of Income Tax [(1998) 229 ITR 383]. We are of the opinion that the issue is specifically covered by the decision of National Thermal Power Co. Ltd. The facts necessary for the claim are available in the returns itself. The assessee as was noticed had inadvertently shown it

ITA No.277/2010 ::4:: as profit & gains from business while it was actually income from capital gains. Deduction hence could always be directed to be considered by the Assessing Officer as has been held in National Thermal Power Co. Ltd. In such circumstances, we direct the Assessing Officer to consider the claim which was raised before the appellate authorities also. The question is answered in favour of the assessee and against the Revenue. The appeal is allowed. No costs.

Sd/- K. Vinod Chandran, Judge Sd/- Ashok Menon, jma Judge

ITA No.277/2010 ::5:: APPENDIX PETITIONER'S/S EXHIBITS: ANNEXURE-A TRUE COPY OF THE COMPUTATION OF INCOME FILED WITH THE ORIGINAL RETURN. ANNEXURE-B TRUE COPY OF INTIMATION ISSUED BY THE RESPONDENT UNDER SECTION 143(1) ON 15/12/2005. ANNEXURE-C TRUE COPY OF NOTICE DATED 05/04/2006 ISSUED BY THE RESPONDENT UNDER SECTION 143(2). ANNEXURE-D TRUE COPY OF THE COMPUTATION ACCOMPANYING THE REVISED RETURN OF THE APPELLANT. ANNEXURE-E TRUE COPY OF LETTER DATED 10/10/2007 ISSUED BY THE DEPARTMENT. ANNEXURE-F TRUE COPY OF THE REPLY DATED 22/10/2007 FILED BY THE APPELLANT. ANNEXURE-G TRUE COPY OF ASSESSMENT ORDER DATED 12/11/2007 ISSUED BY THE RESPONDENT. ANNEXURE-H TRUE COPY OF APPELLATE ORDER DATED 30/06/2008 OF THE COMMISSIONER OF INCOME TAX. ANNEXURE-I TRUE COPY OF ORDER DATED 22/07/2008 ISSUED BY THE RESPONDENT. ANNEXURE-J TRUE COPY OF SECOND APPEAL DATED 28/08/2008 FILED BY THE RESPONDENT BEFORE THE APPELLATE TRIBUNAL. ANNEXURE-K CERTIFIED COPY OF ORDER DATED 30/03/2010 OF THE APPELLATE TRIBUNAL.