ACIT, Chennai v. Midland latex Products Ltd, Chennai

IN THE INCOME TAX APPELLATE T RIBUNAL COCHIN BENCH COC HIN BEFORE S/SHRI N.VIJAYAKUMARAN JM AND SANJAY ARORA AM I.T.A. NO. 709/COCH./2008 ASSESSMENT YEAR :2005-06 COASTAL RESORTS (INDIA) LTD. CASINO HOTEL WILLINGDON ISLAND COCHIN- 682 003. [PAN: AABCC 3161C] VS. THE ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE-1(2) ERNAKULAM. (ASSESSEE-APPELLANT) (REVENUE-RE SPONDENT) ASSESSEE BY SHRI P.K.SASIDHARAN CA REVENUE BY DR. BABU JOSEPH SR. DR O R D E R PER SANJAY ARORA AM : THIS APPEAL BY THE ASSESSEE IS ARISING OUT OF THE ORDER BY THE COMMISSIONER OF INCOME-TAX (APPEALS)-II KOCHI (CIT(A) FOR SHORT) DATED 30.4.2008 AND THE ASSESSMENT YEAR (A.Y.) UNDER REFERENCE IS 2005-06. 2. THE APPEAL RAISED PRINCIPALLY ONE ISSUE I.E. T HE COMPUTATION OF `BOOK PROFIT FOR THE RELEVANT YEAR U/S. 115JB OF THE INCOME- TAX ACT 1961 (THE ACT HEREINAFTER). 3. THE FACTS IN BRIEF ARE THAT THE ASSESSEE A COMPANY UNDER THE COMPANIES ACT 1956 DECLARED NIL INCOME VIDE ITS RETURN FILED ON 31.10. 2005 WHICH STOOD PROCESSED U/S. 143(1) OF THE ACT ACCORDINGLY. IN THE COURSE OF THE ASSESS MENT PROCEEDINGS U/S. 143(3) OF THE ACT THE ASSESSING OFFICER (AO) ANALYSING THE COMPUTATI ON OF THE BOOK PROFIT U/S. 115JB FOUND ON THE BASIS OF THE ASSESSEES FINAL ACCOUNT S INCLUDING FOR THE PRECEDING YEARS THAT THE AMOUNT OF LOSS AND UNABSORBED DEPRECIATION AS P ER ITS ACCOUNTS AS AT THE END OF THE IMMEDIATELY PRECEDING YEAR AND THUS BROUGHT FORWA RD FOR THE CURRENT YEAR TO BE AT RS. NIL AND RS. 38750957/- RESPECTIVELY. THE ASSESSEE- COMPANY HAD AS SUCH IN HIS VIEW WRONGLY CLAIMED THE SET OFF AGAINST THE PROFIT FOR THE YEAR (RS. 17628981/-) OF THE BROUGHT FORWARD LOSS TO THE EXTENT OF AVAILABLE PROFIT I. E. IN VIEW OF CLAUSE (III) OF EXPLANATION 1 TO SECTION 115JB(2) WHICH MANDATES DEDUCTION OF TH E AMOUNT OF LOSS BROUGHT FORWARD OR ITA. NO. 709/COCH./2008 2 UNABSORBED DEPRECIATION WHICHEVER IS LESS AS PER T HE BOOKS OF ACCOUNTS. HE ACCORDINGLY ASSESSED THE ASSESSEES BOOK PROFIT FOR THE YEAR AT RS. 17628981/- AND WORKED OUT THE TAX PAYABLE ON THAT BASIS BESIDES CHARGING INTEREST U/ S. 234B AND 234D OF THE ACT. THE LD. CIT (A) FOUND NO MERIT IN THE ASSESSEES CASE IN VI EW OF THE CLEAR PROVISION OF SECTION 115JB OF THE ACT. THERE WAS NO VIOLATION OF THE D ECISION BY THE HONBLE APEX COURT IN THE CASE OF APOLLO TYRES LTD. VS. CIT 255 ITR 273 (SC) AS WHAT THE AO DID WAS ONLY TO CARRY OUT THE ADJUSTMENT AS SPECIFIED IN THE RELEVA NT PROVISION. THE FACT THAT THE ASSESSEE HAD FOR THE IMMEDIATELY PRECEDING YEAR SECURED A FAVOURABLE VERDICT FROM THE FIRST APPELLATE AUTHORITY WOULD BE OF NO MOMENT IN DECID ING THE ISSUE AT HAND AS THE REVENUE HAD PREFERRED AN APPEAL AGAINST THE SAID ORDER BEFO RE THE APPELLATE TRIBUNAL. HE ACCORDINGLY UPHELD THE ADJUSTMENT AS MADE BY THE A O IN COMPUTING THE ASSESSEES BOOK PROFIT U/S. 115JB ALSO UPHOLDING THE LEVY OF INTER EST U/S. 234B AND 234D AS CONSEQUENTIAL. AGGRIEVED THE ASSESSEE IS IN APPEAL. 4. BEFORE US LIKE CONTENTIONS STOOD RAISED BY EITHER SIDE. THE AO IT WAS ARGUED BY THE LD. AR HAD WORKED OUT THE UNABSORBED LOSS AND THE UNABSORBED DEPRECIATION COMPONENT OF THE FIGURE OF LOSS AS OBTAINING AND BROUGHT FORW ARD IN ITS ACCOUNTS WHICH HE WAS INCOMPETENT TO DO PARTICULARLY IN VIEW OF THE FACT THAT THE COMPANIES ACT 1956 ITSELF DOES NOT PROVIDE ANY BASIS FOR WORKING OUT THE SAME ; THE FIGURE OF BOOK LOSS BEING ARRIVED AT ONLY AFTER THE CHARGE OF THE DEPRECIATION. THE A O IN DOING SO WAS ONLY SEEKING TO INTERPRET THE PROVISIONS OF THE COMPANIES ACT AND WHICH HE HAS CLEARLY PRECLUDED FROM DOING BY VIRTUE OF THE DECISION IN THE CASE OF APOLLO TYRES LTD. (SUPRA). THE LD. DR ON THE OTHER HAND WOULD SUBMIT THAT ALL THAT THE AO W AS SEEKING TO DO WAS TO APPLY THE PROVISIONS OF THE ACT AND THERE IS NO TRANSGRESSIO N OF THE MANDATE OF THE LAW AS CLARIFIED BY THE HONBLE APEX COURT IN THE CASE OF APOLLO TYRES LTD . (SUPRA). FURTHER THE TRIBUNAL HAD ALREADY DECIDED THE ISSUE IN THE ASSESSEE OWN CASE FOR A.Y. 2004-05 (IN I.T.A. NO. 667/COCH/2007) AGAINST THE ASSESSEE. THEREFORE TH E MATTER OUGHT TO BE REGARDED AS COVERED; NO FRESH ISSUE BEING RAISED FOR ADJUDICATI ON IN THE PRESENT CASE. 5. WE HAVE HEARD THE PARTIES AND PERUSED THE MATER IAL ON RECORD. AT THE OUTSET IT MAY BE CLARIFIED THAT THE AO WHILE SETTING OFF THE AMO UNT OF LOSS BROUGHT FORWARD OR UNABSORBED DEPRECIATION WHICHEVER IS LESS AS PER T HE BOOKS OF ACCOUNTS OF THE ASSESSEE IS ITA. NO. 709/COCH./2008 3 ONLY GIVING EFFECT TO THE PROVISION OF LAW I.E. C LAUSE (III) OF EXPLANATION 1 TO SUB-SECTION (2) OF SECTION 115JB WHICH READS AS UNDER: ` EXPLANATION 1 FOR THE PURPOSE OF THIS SECTION BOOK PROFIT MEAN S THE NET PROFIT AS SHOWN IN THE PROFIT AND LOSS ACCOUNT FOR THE RELEVA NT PREVIOUS YEAR PREPARED UNDER SUB- SECTION (2) AS INCREASED BY - (A) . (B) . (H) IF ANY AMOUNT REFERRED TO IN CLAUSES (A) TO (H) IS DEBITED TO THE PROFIT AND LOSS ACCOUNT AND AS REDUCED BY (I) . (II) .. (III) THE AMOUNT OF LOSS BROUGHT FORWARD OR UNABSORBED DE PRECIATION WHICHEVER IS LESS AS PER THE BOOKS OF ACCOUNT . (IV) AS SUCH THE ASSESSEES CLAIM OF THE AO EXCEEDING H IS JURISDICTION IN ASCERTAINING THE AMOUNTS OF BROUGHT FORWARD LOSS AND UNABSORBED DEPR ECIATION BY WORKING BACK THE SAME ON THE BASIS OF THE ASSESSEES ACCOUNTS FOR THE PRE CEDING YEARS IS NOT TENABLE INASMUCH AS THAT IS THE ONLY BASIS OR THE RELEVANT MATERIAL WIT H REFERENCE TO WHICH THE AO WOULD DETERMINE THE SAME AND IMPLEMENT THE LAW. HOW ELSE IT MAY BE ASKED IS THE AO EXPECTED TO DETERMINE THE SAME OR VERIFY WHETHER THE ASSESS EES WORKING THEREOF IS CONSISTENT WITH ITS ACCOUNTS AND THUS ITS CLAIM IN ACCORDANCE WIT H THE LAW ? AS LONG AS THE AO BASES HIS WORKING ON THE ASSESSEES AUDITED ACCOUNTS HE IS O NLY ACTING WITHIN THE PROVINCE OF THE LAW AND HIS ACTION IS IN CONSONANCE WITH THE STATU TORY MANDATE TO WHICH HE IS DUTY BOUND TO GIVE EFFECT TO. IN FACT THE ASSESSEE WOULD ITSE LF IN PREFERRING ITS CLAIM AND PREPARING THE RETURN OF INCOME ONLY DO LIKEWISE AND FURTHER IS DUTY BOUND TO PROVIDE THE AO WITH THE RELEVANT AND NECESSARY INFORMATION. 6. COMING TO THE SECOND ASPECT OF THE MATTER AS RAISED BY THE ASSESSEE I.E. THAT THE COMPANIES ACT DOES NOT PROVIDE ANY GUIDELINE FOR WO RKING OUT THE AMOUNT OF LOSS BROUGHT FORWARD OR UNABSORBED DEPRECIATION SO THAT IN ITS ABSENCE THE AO IS ONLY EMBARKING ON AN INTERPRETATIVE EXERCISE OF THE PROVISION OF THE COM PANIES ACT WHICH HE IS CLEARLY UNAUTHORIZED TO. WE FIRSTLY OBSERVE THE ASSESSEE S CLAIM AS INCONSISTENT WITH THE PROVISION OF THE ACT AS IF THAT BE SO HOW IS THE ASSESSEE EXPECTED TO COMPLY WITH AND ITA. NO. 709/COCH./2008 4 MEET THE LAW AND THE REVENUE AUTHORITIES WHERE SO DEEMED FIT VERIFY THE SAME. THAT IS HOW COULD THERE BE A COMPLIANCE OF THE LAW IF THE PROVISIONS OF THE COMPANIES ACT DO NOT THROW LIGHT IN THE MATTER. IN OTHER WORDS THE ASSE SSEES ARGUMENT ONLY IMPLIES THAT THE RELEVANT PROVISION OF THE ACT IS INCAPABLE OF BEING MET. IN FACT THE ISSUE OF DETERMINATION OF THE SAID TERMS (UNABSORBED LOSS AND UNABSORBED D EPRECIATION) AS PER THE PROVISIONS OF THE COMPANIES ACT CAME UP FOR CONSIDERATION BY THE HONBLE APEX COURT IN THE CONTEXT OF THE PROVISION OF SECTION 115JB IN THE CASE OF SURANA STEELS (P.) LTD. VS. DY.CIT 237 ITR 777 (SC). THE HONBLE APEX COURT ON AN EXAMINA TION OF THE RELEVANT PROVISIONS OF THE COMPANIES ACT PER ITS JUDGMENT DATED APRIL 13 1999 HELD THE AMOUNT OF LOSS AS REFERRED TO IN THE PROVISION AS ONE ARRIVED AT AFTE R TAKING INTO ACCOUNT THE AMOUNT OF DEPRECIATION PROVIDED IN THE PROFIT AND LOSS ACCOUN T. THE SAID ISSUE THUS STANDS SETTLED BY THE APEX COURT OF THE LAND SO THAT IT IS SURPRI SING THAT THE ASSESSEE SHOULD HAVE RAISED THE STATED ARGUMENT. CONTINUING FURTHER THERE HAS SINCE BEEN A CHANGE IN LAW WITH THE COOPTION ON THE STATUTE OF AN EXPLANATION TO THE RELEVANT CLAUSE (III) WITH EFFECT FROM 1/4/ 2001 WHICH READS AS: EXPLANATION FOR THE PURPOSE OF THIS CLAUSE (A) THE LOSS SHALL NOT INCLUDE DEPRECIATIO N; (B) THE PROVISIONS OF THIS CLAUSE SHALL NO T APPLY IF THE AMOUNT OF LOSS BROUGHT FORWARD OR UNABSORBED DEPRECIATION IS NIL; OR .. THE RELEVANT EXTANT PROVISION OF LAW IS SELF-CONT AINED AND ITSELF CLARIFIES THE SCOPE OF THE RELEVANT TERMS SO THAT THERE IS EVEN OTHERWISE NO SCOPE FOR THE ARGUMENT AS RAISED BY THE ASSESSEE WITH REGARD THERETO. WITHOUT DOUBT THEREF ORE THE LOWER OF THE AMOUNT OF LOSS BROUGHT FORWARD OR UNABSORBED DEPRECIATION COMPUTE D IN THE MANNER AFORESAID WOULD STAND TO BE SET OFF AGAINST THE CURRENT YEARS PROF IT IN COMPUTING THE ASSESSEES BOOK PROFIT FOR THE YEAR U/S. 115JB. AS SUCH EVEN THOUGH THE P ROFIT AND LOSS ACCOUNT UNDER SCHEDULE VI TO THE COMPANIES ACT WOULD INCLUDE THE CHARGE OF DEPRECIATION AND THE `LOSS IN TERMS OF & UNDER THE SAID ACT THUS INCLUSIVE OF THE AMO UNT OF DEPRECIATION THE LOSS AS BROUGHT FORWARD AND ADMISSIBLE FOR ADJUSTMENT U/S. 115JB WO ULD BE ONE WITHOUT INCLUSION OF THE SAME. TO THAT EXTENT THERE IS THUS A DEPARTURE F ROM THE PROVISIONS OF THE COMPANIES ACT WHICH STAND DULY EXPLAINED BY THE HONBLE APEX COUR T IN THE CASE OF SURANA STEELS PVT. ITA. NO. 709/COCH./2008 5 LTD. (SUPRA) AND WHICH (DEPARTURE) THOUGH IS BESIDES THE POINT IN VIEW OF THE AMENDED LAW. 7. THAT LEAVES US ONLY WITH ONE ISSUE I.E. AS TO HOW THE LOSS OR UNABSORBED DEPRECIATION RECKONED IN TERMS OF S. 115JB WOULD BE PRIORITIZED FOR SET OFF AGAINST THE PROFIT FOR ANY PRECEDING YEAR I.E. FOR WHICH THER E IS NO DEFICIT EITHER ON ACCOUNT OF LOSS OR DEPRECIATION I.E. FOR THAT YEAR. THIS IS AS THE S AME WOULD IMPACT THE QUANTUM OF LOSS OR UNABSORBED DEPRECIATION TO BE CARRIED FORWARD TO TH E FOLLOWING YEAR AND UP TO THE CURRENT YEAR WHICH COULD THEN BE SET OFF IN TERMS OF CLAUS E (III) UNDER REFERENCE. THE LD. CIT(A) HAS CONFIRMED THE ASSESSMENT ORDER DETAILING THE B ASIS FOR ARRIVING AT THE AMOUNT OF LOSS BROUGHT FORWARD AND UNABSORBED DEPRECIATION AS PER THE ASSESSEES BOOKS BY ADJUSTING THE PROFIT AGAINST THE BROUGHT FORWARD BUSINESS LOS S LEADING TO THE LOSS BROUGHT FORWARD AND UNABSORBED DEPRECIATION FOR THE CURRENT YEAR AT RS. NIL AND RS. 15226884/- RESPECTIVELY VIDE PARA 6.1 & 6.2 OF HIS ORDER. AS SUCH NO ADJUSTMENT IN VIEW OF CLAUSE (III) AFORE-REFERRED R/W EXPLANATION THERETO WOULD BE CALLED FOR AND THE ENTIRE AMOUNT OF PROFIT FOR THE YEAR (RS. 176.29 LACS) WOULD QUALIFY TO BE THE `BOOK PROFIT U/S. 115JB OF THE ACT. WE ARE INCLINED TO BE IN AGREEMENT WITH THE S AID COURSE WHICH ALSO APPEARS TO BE CONSISTENT WITH THE TRIBUNALS VIEW AS EXPRESSED IN THE ASSESSEES OWN CASE FOR THE IMMEDIATELY PRECEDING YEAR; THE SAID ORDER BEING NO T ON RECORD AND NEITHER REFERRED TO BY THE AUTHORITIES BELOW. THIS IS FOR THE REASON THAT THE PROVISION FOR DEPRECIATION IS ONLY TOWARD A DIMINUTION IN THE VALUE OF THE ASSETS EMPL OYED IN BUSINESS AND THUS A NON-CASH CAPITAL ALLOWANCE WHICH WOULD BE LIABLE FOR ADJUST MENT OR SET OFF ONLY WHERE THERE IS A POSITIVE FIGURE OF PROFIT SO THAT LOSS SIGNIFYING THE SHORTFALL IN THE REVENUE VIS--VIS CURRENT EXPENDITURE WILL NEED TO BE ADJUSTED FIRST . THERE IS ANOTHER MANNER OF LOOKING AT THIS THOUGH TO THE SAME EFFECT. ONCE THE TWO THE LOSS AND THE DEPRECIATION HAVE BEEN SET APART AND TREATED ON DIFFERENT FOOTINGS I.E. BY T HE ACT SO THAT THE `LOSS IS NOT TO INCLUDE THE CHARGE OF `DEPRECIATION THE SAID DIFFERENCE H AS TO BE MAINTAINED AND CARRIED TO ITS LOGICAL CONCLUSION I.E. AS PER THE PROVISIONS OF THE ACT AND NOT THE COMPANIES ACT. AS SUCH NO PROFIT COULD EXIST TILL THERE IS A LOSS O R TILL THE LOSS AS BEING CARRIED IN BOOKS DOES NOT ABATE OR STANDS ADJUSTED IN FULL. THAT IS THE TWO TERMS `PROFIT AND `LOSS BEING ANTITHESIS TO EACH OTHER CANNOT CO-EXIST AND IT I S NOT POSSIBLE TO SAY THAT THE BOOKS REFLECT ON THE WHOLE A PROFIT AS WELL AS LOSS AT THE SAME TIME. IT IS ONLY ONCE THE LOSS BEING CARRIED ITA. NO. 709/COCH./2008 6 IN BOOKS STANDS NEUTRALIZED COULD ONE SPEAK IN TERM S OF PROFIT AS OPPOSED TO LOSS AND WHICH IS THEN AVAILABLE FOR SET OFF AGAINST THE UNA BSORBED DEPRECIATION. THIS WOULD ONLY BE POSSIBLE IF THE PROFIT FOR ANY YEAR IS FIRST ADJUST ED OR SET OFF AGAINST BROUGHT FORWARD LOSS IN PREFERENCE TO UNABSORBED DEPRECIATION. WE THEREFOR E UPHOLD THE WORKING OF THE LD. CIT(A) IN THE MATTER EVEN AS WE OBSERVE THAT THE ASSESSEE HAS PER ITS WORKING MADE ANOTHER ADJUSTMENT FOR RS. 6.20 LACS ON ACCOUNT OF DEFERRED TAX (FOR THE ACCOUNTING PERIOD 2002-03) WHICH HAS BEEN OMITTED TO BE CONSIDERED BY HIM AND WHICH COULD HAVE A BEARING ON THE FINAL FIGURE OF UNABSORBED DEPRECIAT ION THOUGH THE BROUGHT FORWARD LOSS WOULD CONTINUE TO BE NIL AND THUS OF LITTLE CONSE QUENCE INSOFAR AS THE PRESENT DECISION OR THE BOOK PROFIT FOR THE YEAR IS CONCERNED WHICH W OULD REMAIN UNDISTURBED. FOR THAT MATTER WE ALSO OBSERVE A WIDE DIFFERENCE BETWEEN T HE FIGURES OF UNABSORBED DEPRECIATION ADOPTED BY THE AO AND THE LD. CIT(A) TO AGAIN NO EFFECT. FINALLY WE OBSERVE NO DIFFERENCE OF OPI NION BETWEEN THE TWO PARTIES IN RELATION TO THE UNDERSTANDING OF THE EXPLANATION TO CLAUSE (III) (SUPRA) POSTULATING THAT ITS PROV ISIONS WOULD NOT APPLY WHERE ONE OF THE TWO I.E. THE LOS S BROUGHT FORWARD OR UNABSORBED DEPRECIATION AS PER THE ASSESSEES ACCOUNTS IS NI L TO MEAN THAT NO ADJUSTMENT UNDER THE SAID CLAUSE WOULD HOLD OR BE ELIGIBLE IN THE COMPUT ATION OF `BOOK PROFIT IN SUCH A CASE. THE SAME EVEN OTHERWISE IS IN CONFORMITY WITH THE NORMAL MEANING OF THE LANGUAGE USED AND IS ALSO IN AGREEMENT WITH THE RATIONALE O F THE PROVISION. THIS IS AS IF THE INTENT IS TO GIVE A REDUCTION FOR EITHER AND THE LOWER OF THE TWO THE BROUGHT FORWARD LOSS AND UNABSORBED DEPRECIATION THE BASIS FOR SAID REDUCTI ON WOULD NOT SURVIVE ON ANY ONE OF THEM REACHING THE FIGURE OF NIL I.E. ON BEING TOT ALLY NEUTRALIZED. IN THIS CONTEXT IT MAY BE PERTINENT TO STATE THAT BOTH THE CONCEPTS `LOSS A ND `UNABSORBED DEPRECIATION DENOTE A DEFICIENCY OR A NEGATIVE VALUE SO THAT THE FACT OF THEIR BEING AT NIL VALUE ONLY IMPLIES EXTINCTION OF ITS EXISTENCE. PUT DIFFERENTLY TO ST ATE THAT THE LOSS OR UNABSORBED DEPRECIATION IS NIL WOULD BE A CONTRADICTION IN TERMS AND THE S AME CAN ONLY MEAN THAT THERE IS NO LOSS OR NO UNABSORBED DEPRECIATION AS THE CASE MAY BE. 8. IN VIEW OF THE FOREGOING WE FIND NO INFIRM ITY IN THE IMPUGNED APPELLATE ORDER ON THIS ISSUE AND CONFIRM THE `BOOK PROFIT AS ASSESS ED BY THE REVENUE U/S. 115 JB OF THE ACT. WE DECIDE ACCORDINGLY AND THE ASSESSEE FAILS ON ITS GROUNDS 1 THRO 6. ITA. NO. 709/COCH./2008 7 9. THE ONLY OTHER ISSUE RELATES TO THE CHARGE OF IN TEREST U/S. 234B AND 234C OF THE ACT AGITATED PER GROUND # 7. IN THIS REGARD WE FIND T HAT THERE HAS BEEN NO LEVY OF INTEREST U/S. 234C OF THE ACT VIDE THE ASSESSMENT ORDER SO THAT THE ASSESSEES CHARGE IS NOT MAINTAINABLE. IN FACT THE SAME IS TO BE ONLY WITH REFERENCE TO THE RETURNED FIGURE AND THEREFORE WOULD NOT BE IMPACTED BY THE ASSESSED IN COME BEING ANY DIFFERENT FROM THE RETURNED INCOME. THAT LEAVES US ONLY WITH INTEREST U/S. 234B OF THE ACT. THE MATTER HAS RECEIVED CONSIDERATION BY THE HONBLE JURISDICTIONA L HIGH COURT IN THE CASE OF CIT VS. NILGIRI TEA ESTATE LTD . (2009) 312 ITR 161 (KER.) WHEREIN IT STANDS HEL D THAT THE PROVISIONS OF SECTION 234B AND 234C WOULD NOT BE AP PLICABLE WHERE THE ASSESSEES TAXABLE INCOME IS COMPUTED UNDER THE MAT PROVISIONS . ACCORDINGLY NO INTEREST U/S. 234B OF THE ACT IS LEVIABLE. IN THIS REGARD IT MA Y ALSO BE CLARIFIED THAT INTEREST U/S. 234D WHICH STOOD AGITATED BEFORE THE LD. CIT(A) HAS NOT HING TO DO WITH THE PROVISIONS OF ADVANCE-TAX AND ONLY SEEKS TO COMPENSATE THE REVEN UE FOR THE REFUND GIVEN AS IN THE PRESENT CASE ON THE PROCESSING OF THE RETURN OF IN COME WHERE SUBSEQUENTLY FOUND TO BE IN EXCESS. AS SUCH EVEN AS THERE IS NO GROUND BEFORE US THE SAID DECISION BY THE HONBLE JURISDICTIONAL HIGH COURT SHALL NOT THEREFORE APP LY IN THE CASE OF SECTION 234D OF THE ACT. WE DECIDE ACCORDINGLY AND THE ASSESSEE SUCCEEDS PA RTLY. 10. IN THE RESULT THE ASSESSEES APPEAL IS PARTLY ALLOWED. SD/- SD/- (N.VIJAYAKUMARAN) (SANJAY ARORA) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: ERNAKULAM DATED: 20TH APRIL 2010 GJ COPY TO: 1. M/S. COASTAL RESORTS (INDIA) LTD. CASINO HOTEL WILLINGDON ISLAND COCHIN-3. 2. THE ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE -1(2 ) ERNAKULAM. 3. THE COMMISSIONER OF INCOME-TAX (APPEALS)-II KOC HI. 4. COMMISSIONER OF INCOME-TAX KOCHI. 5. D.R./I.T.A.T. COCHIN BENCH COCHIN. 6. GUARD FILE. FIT FOR PUBLICATION IN I.T.D. JUDICIAL MEMBER ACCOUNTANT MEMBER ITA. NO. 709/COCH./2008 8 BY ORDER (ASSISTANT REGISTRAR)