IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 30TH MARCH 2010 / 9TH CHAITHRA 1932 ITA.No. 1345 of 2009() ------------------------------ IT(S&S)A.11/COCH/2004 of INCOME TAX APPELLATE,TRIBUNAL,COCHIN BENCH .................... APPELLANT/RESPONDENT ------------------------ THE COMMISSIONER OF INCOME TAX,COCHIN. BY ADV. SRI.JOSE JOSEPH, SC, FOR INCOME TAX RESPONDENT(S): APPELLANT ------------------------ SOUTHERN ELECTROMAG (P) LTD., PANAMPILLY NAGAR,KOCHI-36. ADV. SRI.P.BALAKRISHNAN (E) THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 30/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss C.N.Ramachandran Nair & P.S.Gopinathan, JJ. ================================================== I.T.A.1345 of 2009 ================================================== Dated this the 30th day of March, 2010. JUDGMENT Ramachandran Nair, J. 1.Heard the senior standing counsel for the appellant and Sri.P.Balakrishnan for the respondent. 2.The only question raised is whether the amount assessed as long term capital gain is undisclosed income within the meaning of Section 158BB for assessment under the Income Tax Act. After four days of the search, the assessee filed a revised return for the relevant assessment year disclosing the income from long term capital gain by stating that information about sale of shares done through other companies itself was received ITA1345/09 -:2:- after filing of original return. The Tribunal found that assessee had accounted the share purchases and in fact the Department had not detected in the course of search any details of sale of shares assessable as long term capital gain. Since the sole information about the sale of shares is from the revised return itself, the Tribunal held that the income cannot be treated as undisclosed income within the meaning of Section 158BB of the Act. We do not find any merit in the Department appeal because, there is nothing to indicate that the income in the form of long term capital gain is detected by the Department in the course of search. Further, it is the finding of the Tribunal that the Department came to know about the availability of long term capital gain only based on the revised return filed by the assessee. Besides this, it is clear from the order that the assessee had ITA1345/09 -:3:- sufficient business loans to set off the long term capital gain and so much so, no purpose is served to the assessee by not disclosing the income in the original return. In view of the factual findings of the Tribunal that the income assessed does not constitute undisclosed income under Section 158 BB, no interference is called for in the order of the Tribunal under appeal. Consequently, we dismiss the Department appeal. C.N.Ramachandran Nair, Judge. P.S.Gopinathan, Judge. sl.