The Commissioner Of Income Tax vs Shri.C.G.G.Panicker on 6 March, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

ITA.No. 131 of 2008()


1. THE COMMISSIONER OF INCOME TAX,
                      ...  Petitioner

                        Vs



1. SHRI.C.G.G.PANICKER,
                       ...       Respondent

                For Petitioner  :SRI.P.K.R.MENON,SR.COUNSEL, GOI(TAXES)

                For Respondent  :SRI.S.ARUN RAJ

The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice K.SURENDRA MOHAN

 Dated :06/03/2009

 O R D E R
      C.N.RAMACHANDRAN NAIR & K.SURENDRA MOHAN, JJ.
        ------------------------------------------------------------------------------------
                        I.T.A NOS: 131 & 155 OF 2008
        -----------------------------------------------------------------------------------
                        Dated this the 6th March, 2009.

                                        JUDGMENT

RAMACHANDRAN NAIR, J.

The question raised in the connected appeal filed by the

department is whether the Tribunal was justified in confirming the

order of the CIT (appeal) cancelling rectification order issued under

Section 154 of the I.T. Act. We notice from orders of the authorities

below that rectification was carried out under Section 154 to

disallow part of the relief originally granted under Section 80HHC of

the Income Tax Act. The purpose of rectification was to reduce the

loss by applying Section 80AB of the Income Tax Act. Even the

decision of this Court on this issue is divergent in Commissioner of

Income Tax v. A.V.Thomas & Co. Ltd (225 ITR 29) and

Commissioner of Income Tax v . V.T.Joseph (225 ITR 731). The

CIT (appeal) and Tribunal have also referred the decision in

Commissioner of Income Tax v. Gogineni Tobacco Ltd (238 ITR

970). It is the finding of the first appellate authority with the

divergent decisions expressed by the High Courts itself is proof of

the debatable nature of the issue. Rectification is permissible only

I.T.Appeals 131 & 155/2008 2

to correct mistakes apparent and not to settle debatable questions

of law. Further assessment pertains to 1987-88 and 1988-89. In

view of the findings of the lower authorities that the issue is

debatable, we dismiss the appeals filed by the revenue.

C.N. RAMACHANDRAN NAIR
Judge

K. SURENDRA MOHAN
Judge

jj

K.K.DENESAN & V. RAMKUMAR, JJ.

—————————————————-

M.F.A.NO:

—————————————————–

JUDGMENT

Dated: