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. 85 of 2001() -------------------- AGAINST THE ORDER DATED 4/12/2000 IN COCH. IN ITA.733/1992 of I.T.A.TRIBUNAL,COCHIN BENCH .................... APPELLANT/APPELLANT:- ------------------------------------- M/S.RAM BAHADUR THAKUR LIMITED, “SIDDHARTH”, WILLINGDON ISLAND, COCHIN : 682 003. BY ADV. SRI.JOSEPH MARKOSE SRI.JOSEPH KODIANTHARA RESPONDENT/RESPONDENT:- ------------------------------------------ THE DEPUTY COMMISSIONER OF INCOME TAX (ASESSMENT), SPECIAL RANGE I, ERNAKULAM. BY ADV. SRI.P.K.R.MENON(SR.),SR.COUNSEL FOR IT FOR R SRI.GEORGE K. GEORGE, SC FOR IT FOR R THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 30/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N. Ramachandran Nair & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - I.T.A.NO.85 of 2001 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of January, 2008. JUDGMENT C.N. Ramachandran Nair, J. Heard learned counsel for the appellant and learned Senior Standing Counsel appearing for the respondent. The question raised is whether the appellant is entitled to deduction of Rs.30 lakhs stated to have been paid to the tenant to vacate the premises, in the computation of sale of the leased premises. The matter was once remanded by this court vide Annexure F judgment. However, even after remand, the Tribunal has declined relief to the assessee, because the assessee did not prove that the payment was made to the so called tenant. Learned counsel for the appellant contended that the Tribunal has exceeded the scope of the remand by this court and this court had not authorised the Tribunal to consider whether payment was in fact made. We do not find any substance in this contention because deduction in the computation of capital gains is permissible in this case only if the assessee proves the following facts: (a) that the company to which payment was made, was the tenant; (b) payment of the amount claimed was in fact made to the said -2- company; and © the payee vacated the premises before the sale of the building. The above are facts which should be proved through evidence and we find no difficulty for the assessee to prove these facts by production of profit and loss account and balance sheet of the payee company which is admittedly a public limited company, of which one of the Directors is a Director of the assessee company. It is also reported that the tenant company has in its equity Government participation and if that be so, it would have printed profit and loss account and if the huge amount of Rs.30 lakhs was paid by the assessee as claimed by him, then it should find a place in the profit and loss account and the balance sheet of the company for the relevant year. In fact, the income would have been considered in the income tax assessment of the payee company. Instead of producing convincing evidence, the assessee has chosen to produce a receipt for payment of Rs.30 lakhs without even furnishing the bank particulars. We do not find any question of law arising from the order of the Tribunal rejecting the claim for want of proof. This appeal is accoridngly dismissed as devoid of any merit. (C.N. Ramachandran Nair, Judge.) (T.R. Ramachandran Nair, Judge.) -3- C.N. Ramachandran Nair & & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - I.T.A. No.85 of 2001 - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 30th January, 2008.