IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 29TH JULY 2008 / 7TH SRAVANA 1930 I.T.A.No. 40 of 2008 --------------------------------- ORDER DATED 25.8.2003 IN ITA.280/2000 OF THE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH .................... APPELLANT/RESPONDENT: --------------------------------------- THE COMMISSIONER OF INCOME-TAX, THIRUVANANTHAPURAM. BY CENTRAL GOVERNMENT STANDING COUNSEL FOR INCOME TAX, SRI.GEORGE K. GEORGE RESPONDENT/APPELLANT: --------------------------------------- SHRI.JACOB C.LUKE, NOBLE CASHEW INDUSTRIES, KOTTARAKKARA. THIS INCOME TAX APPEAL HAVING COME UP FOR ADMISSION ON 29/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L.DATTU, C.J. & A.K.BASHEER, J. ------------------------------------------- I.T.A.No.40 of 2008 ------------------------------------------ Dated, this the 29th day of July, 2008 JUDGMENT H.L.Dattu, C.J. The revenue is before us in this appeal filed under Section 260A of the Income-tax Act, inter alia, questioning the correctness or otherwise of the orders passed by the Income Tax Appellate Tribunal in ITA No.295/99 dated 14.3.2003. 2. The facts are:- The assessee is engaged in the business of export of cashew. For the assessment year 1994-95, while completing the assessment under Sec.143(3), the assessing officer has set off the loss computed on export of trading goods against the profit from exports under manufacture and incentives. This was challenged before the first appellate authority. The first appellate authority following the decision of the Tribunal in ITA No.829/95 dated 31.8.1999 confirmed the order of the assessing officer. This was challenged by the assessee before the Tribunal. The Tribunal following the decision of this Court in ITA No.44 of 1992 in the case of CIT vs. Indian Resins and Polymers, Kollam, held that loss in the export of trading goods cannot be adjusted against the profit from export of own goods and vice versa, and accordingly allowed the appeal. I.T.A.No.40 of 2008 2 3. The Revenue has framed the following questions of law for our consideration and consequent decision. They are:- “1. Whether, on the facts and in the circumstances of the case the Tribunal is right in law in directing to recompute the deduction under Section 80 HHC by ignoring the loss derived from the export of trading goods? 2. Whether, on the facts and in the circumstances of the case, while computing deduction under Section 80 HHC the loss derived from export of trading goods has to be excluded?” 4. The appeal was filed as early as on 1st day of January, 2003 and since the Registry had pointed out certain defects in filing the appeal and since they were cured only in the year 2008, the appeal is now posted before us for admission. 5. The learned counsel for the appellant would submit that the issues raised in this appeal is now covered by a recent decision of the Apex Court and therefore, we should admit this appeal and issue notice to the respondents. We are not inclined to accept the submission made by the learned counsel for the Revenue. 6. The Tribunal had disposed of the assessee's appeal following the law laid down by this Court in the case of CIT vs. Indian Resins and Polymers, Kollam (ITA No.44/2002) has granted the relief to I.T.A.No.40 of 2008 3 the assessee by an order passed in the month of August,2003. Since the Revenue has not effectively filed any appeal against the orders passed by the Income Tax Appellate Tribunal, there is every possibility that the assessee would have arranged his affairs as was done by him earlier and which has been accepted by the Appellate Tribunal. Nearly after five years from the date of the order, if we have to issue notice to the respondents only because, the revenue was not diligent in prosecuting the appeal filed in the year 2003, in our view, it could cause great prejudice and injustice to the assessee/respondent. Therefore, we do not wish to entertain this appeal. However, we reserve liberty to the Revenue, if they so desire to file a review petition before the Tribunal, if they are of the view that decision rendered by them following the decision of this court is no more a good law in view of the recent decision of the Apex Court. With these observations, we dispose of this appeal. Ordered accordingly. (H.L.DATTU) CHIEF JUSTICE (A.K.BASHEER) JUDGE vns/dk