IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 24TH FEBRUARY 2009 / 5TH PHALGUNA 1930 ITA.No. 59 of 2008() -------------------- ITA.814/COCH//2005 of I.T.A.TRIBUNAL,COCHIN BENCH .................... APPELLANT: ------------------------------ THE COMMISSIONER OF INCOME-TAX, THIRUVANANTHAPURAM. BY ADV. SRI.P.K.R.MENON,SR.COUNSEL, GOI(TAXES) SRI.GEORGE K. GEORGE, SC FOR IT RESPONDENT(S): RESPONDENT: -------------------------- K.SADASIVAN, K.S.NIVAS, THACHANCODE, KUNNATHUKAL, KARAKONAM P.O., TRIVANDRUM. ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE FOR R1 SRI.J.R.PREM NAVAZ FOR R1 THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 24/02/2009, THE COURT ON 24/02/2009 DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & K.SURENDRA MOHAN, JJ. .................................................................... I.T. Appeal No.59 of 2008 .................................................................... Dated this the 24th day of February, 2009. JUDGMENT Ramachandran Nair, J. Heard counsel appearing for the appellant. Counsel for the appellant contended that the Tribunal's refusal to entertain appeal is not justified because on questions of law appeal is maintainable, if audit objection on question of law is accepted by the department. However, on going through the order appealed against before the Tribunal, we find that the question raised in the appeal filed by the Revenue is against the order of the Commissioner (Appeals) cancelling disallowance made under Section 43B of the Income Tax Act. It is the clearcut finding of the Commissioner that the assessment is made on estimation basis and consequently there is no occasion to consider assessee's claim for reduction under Section 43B. We do not think any purpose will be served by restoring the appeal to the Tribunal because assessee's income from abkari business is assessed on estimation basis 2 and therefore, claim of deduction of Welfare Fund does not arise for consideration. The appeal is consequently dismissed. C.N.RAMACHANDRAN NAIR Judge K.SURENDRA MOHAN Judge pms