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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI & THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS WEDNESDAY, THE 7TH DAY OF DECEMBER 2022 / 16TH AGRAHAYANA, 1944 ITA NO. 197 OF 2009 AGAINST THE ORDER IN ITA 695/COCH/2006 OF INCOME TAX APPELLATE TRIBUNAL,COCHIN BENCH APPELLANT:
COMMISSIONER OF INCOME TAX, THIRUVANANTHAPURAM.
BY ADV SRI.JOSE JOSEPH, SC, FOR INCOME TAX RESPONDENT:
M/S HOTEL SUN BEAM, ATTAKULANGARA TRIVANDRUM.
BY ADVS. SRI.K.ANAND A.201 SMT.LATHA KRISHNAN OTHER PRESENT:
SR. ADV. P.K.R.MENON., ADV NAVNEETH N NATH THIS INCOME TAX APPEAL HAVING COME UP FOR ADMISSION ON 07.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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J U D G M E N T
S.V.Bhatti, J.
Heard Adv. P.K.R Menon for the appellant and Adv. Latha Krishnan for parties. 2. The Commissioner of Income-tax, Thiruvananthapuram/ Revenue is the appellant. M/s. Hotel Sun Beam, Thiruvananthapuram/assessee is the respondent. 3. The Revenue challenges the order of the Income Tax Appellate Tribunal, Kochi in I.T.A No.695/Coch/2006. The subject matter of the appeal relates to the assessment year 2002- 03. The appeal is filed on the following substantial questions of law: “1. Whether on the facts and in the circumstances of the case the reassessment made by the Assessing Officer treating the status as AOP as against the assessee’s claim as registered firm is in order in view of the legal position under Abkari Act
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and Income tax Act? 2. Whether on the facts and in the circumstances of the case and also in the light of the decision of the Hon’ble Supreme Court in 254 ITR 230: i) the assessee is entitled to be treated as a registered firm ii) the Tribunal is right in law in interfering with the status accorded to the assessee by the Assessing Officer.”
The learned counsel appearing for the parties state that the questions of law framed in instant appeal are covered by the judgment dated 29.11.2010 in ITA No.175/2009. The operative portion of the judgment reads thus: “In view of this factual position, we have to necessarily conclude that the assessee-firms are carrying on business strictly in accordance with Rule 13 of the Foreign Liquor Rules and Condition 13 of the FL-3 Licence in as much as the constitution of the firm for carrying on business in liquor with the licence held by one of the partners is a permissible activity and the firms so constituted are genuine firms which are entitled to be assessed in the status of firms and for periods when registration is required under Section 185, the firms are entitled to be assessed as registered firms subject to their satisfying other conditions. We, therefore, dismiss all the appeals filed by the Revenue.” 5. The questions framed in the instant appeal by
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following the judgment dated 29.11.2010 in ITA No.175/2009, are answered in favour of the assessee and against the Revenue for statistical purposes.
Appeal is dismissed as indicated above.
Sd/- S.V.BHATTI JUDGE
Sd/- BECHU KURIAN THOMAS JUDGE
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APPENDIX OF ITA 197/2009
PETITIONER’S ANNEXURES Annexure A TRUE COPY OF THE ORDER U/S 143(3) R.W.S 147 OF THE ASSESSING OFFICER DATED 30/12/2005. Annexure B TRUE COPY OF THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) DATED 27/09/2006. Annexure C TRUE COPY OF THE ORDER OF THE APPELLATE TRIBUNAL DATED 12/12/2007.