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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI & THE HONOURABLE MR.JUSTICE BASANT BALAJI THURSDAY, THE 4TH DAY OF AUGUST 2022 / 13TH SRAVANA, 1944 ITA NO. 225 OF 2013 AGAINST THE ORDER/JUDGMENT ITA 137/2012 OF I.T.A.TRIBUNAL,COCHIN BENCH APPELLANT:
REHABILITATION PLANTATIONS LIMITED PUNALUR, KOLLAM DISTRICT. KOLLAM-691 305.
BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.BENNY THOMAS SRI.K.JOHN MATHAI
RESPONDENT:
COMMISSIONER OF INCOME TAX AYKAR BHAWAN, KAWDIAR, THIRUVANANTHAPURAM-695003.
BY ADVS. SRI.P.K.R.MENON,SR.COUNSEL, GOI(TAXES) SRI.JOSE JOSEPH, SC, FOR INCOME TAX
THIS INCOME TAX APPEAL HAVING COME UP FOR ADMISSION ON 04.08.2022, 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 Mr Kuryan Thomas, learned counsel for the appellant and Mr P.K.R Menon learned Senior Standing Counsel for the respondent. 2. Rehabilitation Plantation Ltd is the appellant. The Commissioner of Income Tax, Aayakar Bhavan, Thiruvananthapuram is the respondent. The present appeal arises from the order dated 22.01.2013 in ITA No.137/Coch/2012 before the Income Tax Appellate Tribunal, Cochin Bench. The subject matter of appeal relates to Assessment Year 2007-08. 3. The assessee raises the following substantial questions of law: i. Whether on the facts and circumstances of the case the appellate tribunal was justified in sustaining the order of the Commissioner of Income Tax without considering the merits of the case? ii. Whether on the facts and circumstances of the case the appellate tribunal was justified in sustaining the order
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of the Commissioner of Income Tax when the assessing officer completed the assessment after making neces- sary enquiries and verifications? iii. Whether there were materials before the appellate tri- bunal to believe that the view taken by the assessing of- ficer is unsustainable in law and is erroneous and preju- dicial to the interest of the revenue? iv. Ought not the appellate tribunal to have found that since the loss sustained by the rubber sheet factory was in the course of a business activity, it ought to have been set off against the business income without applying the provisions of Rule 7A ?
The learned counsel appearing for the parties state that question nos. (i), (ii) and (iii) are covered by the Full Bench order dated 01.08.2022 in I.T.A No.201/2013. Hence, the questions are answered in favour of the assessee and against the Revenue for statistical purposes and the matter is remitted to the Assessing Officer for assessment afresh by keeping in view the order of the Full Bench. Substantial Question No. (iv) By following the reasoning, consideration and remand of question No.(iii) in I.T.A No. 37/2018, question No.(iv) in the instant appeal is answered in favour of the assessee and against the Revenue
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for statistical purposes and the matter is remitted to the Assessing Officer for consideration and disposal afresh.
Appeal is allowed. No order as to costs.
S.V.BHATTI JUDGE
BASANT BALAJI JUDGE
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APPENDIX OF ITA 225/2013
PETITIONER’S ANNEXURES ANNEXURE A TRUE COPY OF THE ASSESSMENT ORDER DATED 24.12.2009 ISSUED BY THE ASSESSING OFFICER TO THE APPELLANT FOR THE YEAR 2007-08 ANNEXURE B TRUE COPY OF THE ORDER UNDER SECTION 154 DATED 29.03.2010 ISSUED BY THE ASSESSING OFFICER TO THE APPELLANT. ANNEXURE C TRUE COPY OF THE NOTIE UNDER SECTON 263 DATED 14.02.2012 ISSUED BY THE COMMISSIONER OF INCOME TAX TO THE APPELLANT. ANNEXURE D TRUE COPY OF THE ORDER DATED 06.03.2012 ISSUED BY THE COMMISSIONER OF INCOME TAX TO THE APPELLANT. ANNEXURE E TRUE COPY OF THE ORDER DATED 22.01.2013 ISSUED BY THE INCOME TAX APPELLATE TRIBUNAL ANNEXURE F TRUE COPY OF THE LETTER DATED 09.11.2009 FILED BY THE APPELLANT BEFORE THE DEPUTY COMMISSIONER OF INCOME TAX