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. 369 of 2009() --------------------- ITA.246/COCH/2000 of I.T.A.TRIBUNAL,COCHIN BENCH .................... APPELLANT/RESPONDENT. ----------------------------------------- THE COMMISSIONER OF INCOME TAX, COCHIN. BY ADV. SRI.JOSE JOSEPH, SC, FOR INCOME TAX RESPONDENT: --------------- M/S. HOTEL & ALLIED TRADES (P) LTD., W/ISLAND, COCHIN - 3. ADV. SRI.P.BALAKRISHNAN (E) THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 30/03/2010, THE COURT ON 30/03/2010 DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. .................................................................... I.T. Appeal No.369 of 2009 .................................................................... Dated this the 30th day of March, 2010. JUDGMENT Ramachandran Nair, J. Question raised is whether the Tribunal was justified in cancelling the disallowance made under Section 43B of the Income Tax Act in respect of the expenditure tax claimed as paid by the assessee from out of adjustments sought from income tax refund of 1995-96. We have heard Standing Counsel appearing for the appellant and Adv. Sri.P.Balakrishnan appearing for the respondent-assessee. 2. After hearing both sides and after going through Tribunal's order, we do not find any substantial question of law arising from the order of the Tribunal for our decision because admittedly assessee's request for adjustment of income tax refund for 1995-96 towards expenditure tax due for 1989-90 and 1990-91 was allowed by the Assessing Officer and we do not know how adjustment from refund cannot be treated as payment made by the assessee as and when adjustment is allowed by the officer. Even though Standing Counsel 2 contended that demand of expenditure tax was later cancelled, the provision is to assess such tax on refund as and when refund is granted under Section 41(1) of the Act. We, therefore, dismiss the appeal as devoid of any merit. C.N.RAMACHANDRAN NAIR Judge P.S.GOPINATHAN Judge pms