The Commissioner of Income Tax (Central) vs. Sri Harish Kumar Harwani

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR.JUSTICE N.ANIL KUMAR TUESDAY ,THE 05TH DAY OF MARCH 2019 / 14TH PHALGUNA, 1940 ITA.No. 67 of 2011 [AGAINST THE ORDER IN ITA 252/2007 of I.T.A.TRIBUNAL,COCHIN BENCH[ APPELLANT: THE COMMISSIONER OF INCOME TAX-I, COCHIN. BY ADVS. SRI.P.K.R.MENON,SENIOR COUNSEL, GOI(TAXES) SRI.JOSE JOSEPH, SC, FOR INCOME TAX SRI.CHRISTOPHER ABRAHAM RESPONDENT: M/S.APOLLO TYRES LTD., 6TH FLOOR, CHERUPUSHPAM BUILDINGS, SHANMUGHAM ROAD, KOCHI-682 031. BY ADVS. SRI.BINU MATHEW SRI.B.J.JOHN PRAKASH SRI.JOSEPH KODIANTHARA (SR.) SRI.MATHEWS K.UTHUPPACHAN SRI.TERRY V.JAMES SRI.TOM THOMAS (KAKKUZHIYIL) SRI.V.ABRAHAM MARKOS SRI.V.B.UNNIRAJ SRI.JOSEPH MARKOSE (SR) THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 05.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

ITA NO.67 OF 2011 :-2-: I.T.A.NO.67 OF 2011

J U D G M E N T P.R.RAMACHANDRA MENON,J: This appeal preferred by the Revenue arise from the verdict passed by the Income Tax Appellate Tribunal, Cochin Bench in I.T.A.No.252/Coch/2007 dated 5.10.2010 in respect of the assessment year 2001-2002. 2. The questions suggested by the Revenue as involving substantial questions of law are in the following terms:- “1. Whether, on the facts and in the circumstances of the case, the Tribunal is right in law in interfering with the addition of Rs.4,66,20,000/- being the amount withdrawn from Investment Fluctuation Reserve' for writing off provision for reduction in the value of GPEL by debit to P/L account for computing the book profit under Section 115 JB? 2. Whether, on the facts and in the circumstances of the case is not the provision for the above amount in the nature of a liability as envisaged in clause (c) of the Explanation below Sec.115JB(2)? 3. Whether, in the light of the amendment by way of clause (i) to Explanation to Section 115JB introduced by Finance Act 2009 with retrospective effect from ¼/2001 does the decision of the Supreme Court in HCL (305 ITR 409) hold the field and the ITAT is justified in relying on the same?” 3. When the matter was admitted on 12.7.2011, notice was served on all the questions. Today when the matter is taken up for final hearing, learned counsel for the revenue submits that the proceedings involved in the present case are more related to the computation of book profit in terms

ITA NO.67 OF 2011 :-3-: of Section 115JB of the Income Tax Act whereby certain adjustments could be effected which originally was not granted but permitted to be effected by passing a rectification order. The Learned counsel points out that the basic issue in respect of the very same assessment year is already under challenge in the appeal filed by the Revenue as I.T.A.No.68/2011 in respect of the assessment finalised under Section 143(3) of the Income Tax Act and this being the position, without prejudice to the rights and liberties of the appellant/revenue to pursue I.T.A.No. 68/2011, I.T.A.No.67/2011 could be closed. On going through the pleadings and proceedings, we find that the course suggested by the learned Standing Counsel is correct and sustainable. Accordingly, we close this I.T.A. without prejudice to the contention taken by the Revenue in I.T.A.No.68/2011 preferred in respect of the very same assessment year (2001-02). sd/- P.R.RAMACHANDRA MENON, JUDGE sd/- N.ANIL KUMAR, JUDGE MBS/