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 5TH AUGUST 2008 / 14TH SRAVANA 1930 ITA.No. 46 of 2008 -------------------------------- (ORDER DATED 25-2-2004 IN I.T.A.No.58/COCH/2003 OF THE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH (ASSESSMENT YEAR 1993-94) ................. APPELLANT/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/ RESPONDENT: -------------------------------------------- SMT. K.R. USHASREE, KOLLAM THIS INCOME TAX APPEAL HAVING COME UP FOR ADMISSION ON 05/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L.DATTU, C.J. & A.K.BASHEER, J. ------------------------------------------- I.T.A.No.46 of 2008 ------------------------------------------ Dated, this the 5th day of August, 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.58/2003 dated 25.2.2004. 2. The assessee is an exporter of cashew. While completing the assessment for the assessment year 1993-1994, the Assessing Officer, for computing deduction under section 80 HHC computed the profit of the business after deducting 90% of the processing charges from the profits and gains of the business and including the same in the total turnover. This was challenged before the first appellate authority. The first appellate authority directed not to exclude 90% of processing charges from the profits and gains of the business to compute profits of the business stating that processing charges is business income. The first appellate authority has also directed to exclude the processing charges from the total turnover. This was challenged by the Revenue before the Tribunal. The Tribunal upheld the order of the first appellate authority and dismissed the appeal filed by the Revenue. I.T.A.No.46 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 and fact in holding that the processing charges formed part of the business income and it cannot be reduced from the profits and gains to arrive at the profits of the business for the purpose of computation under section 80 HHC? 2. Whether on the facts and in the circumstances of the case while computing the relief under section 80HHC of the Income Tax Act, the processing charges could be excluded from the total turnover of the business? 3. Whether, on the facts and in the circumstances of the case, and in view of Explanation (ba) to Section 80 HHC and clauses (iiia), (iiib) and (iiic) of section 28, will not turnover take into account all other receipts other than the excluded items of receipts? 4. The appeal was filed as early as on 13th day of July, 2004 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 respondent. We are not inclined to accept the submission made by the I.T.A.No.46 of 2008 3 learned counsel for the Revenue. 6. The Tribunal had dismissed the Revenue's appeal by an order passed in the month of February, 2004. Nearly after four years from the date of the order, if we have to issue notice to the respondent only because, the Revenue was not diligent in prosecuting the appeal filed in the year 2004, in our view, it could cause great prejudice and injustice to the assessee/respondent. 7. In that view of the matter, we decline to entertain this appeal. Accordingly, the appeal is disposed of. However, we grant liberty to the Revenue to make an appropriate application/review petition before the tribunal for appropriate orders.. Ordered accordingly. (H.L.DATTU) CHIEF JUSTICE (A.K.BASHEER) JUDGE MS