IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 30TH JANUARY 2008 / 10TH MAGHA 1929 ITA.No. 78 of 2001() -------------------- AGAINST THE ORDER DATED / / IN COCH. IN ITA.294/COCH/1994 of I.T.A.TRIBUNAL,COCHIN BENCH .................... APPELLANT: ----------------- THE COMMISSIONER OF INCOME TAX, CALICUT. BY ADV. SRI.P.K.R.MENON(SR.),SC FOR IT SRI.GEORGE K. GEORGE, SC FOR IT RESPONDENTS: ------------- M/S.THE WESTERN INDIA PLYWOODS LTD., CANNANORE. BY ADV. SRI.N.JAMES KOSHY THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ALONG WITH ITA NO.100/2001 ON 30/01/2008, THE COURT ON 30/01/2008 DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & T.R.RAMACHANDRAN NAIR, JJ. .................................................................... I.T.Appeal Nos.78 and 100 of 2001 .................................................................... Dated this the 30th day of January, 2008. JUDGMENT C.N.Ramachandran Nair, J. Heard Standing Counsel for the appellant and counsel appearing for the respondent. These appeals arise from common order of the Tribunal passed for the years 1985-86 and 1991-92. Even though question raised i.e. assessibility of refund of central excise duty, is covered in favour of the Revenue by decision of the Supreme Court in POLYFLEX (INDIA) PVT LTD. V. COMMISSIONER OF INCOME TAX (2002) 257 ITR 343, counsel for the assessee submitted that in this case amount was released to the petitioner against Bank Guarantee. He further submitted that as and when Supreme Court disposed of the matter, the assessee included the entire refund amount in the income in the assessment year relevant for the previous year 2000-2001. The return was submitted and assessment completed and, therefore, department cannot press these appeals is the contention raised by counsel for the assessee. We find force in this contention because if very same income is returned for subsequent year and department accepted the same and assessed the income, then there is no 2 scope for including the very same income in these years. However, since the details of assessment made for 2000-2001 is not on record, we dispose of the appeals directing the officer to verify whether the very same income have been assessed in 2000-2001 and whether assessments have become final and if so, the assessment cannot be revised for these years. However, if the income is not assessed for the year 2000-2001 or any other year as stated in this court, the Assessing Officer will compute the income following the decision of the Supreme Court referred above. The appeals are disposed of by modifying the order of the Tribunal as above. C.N.RAMACHANDRAN NAIR Judge T.R.RAMACHANDRAN NAIR Judge pms