By Advs.sri.harisankar v. Menon Smt.meera V.menon

PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN TUESDAY, THE 6TH DAY OF SEPTEMBER 2016/15TH BHADRA, 1938 WP(C).No. 29348 of 2016 (P) ---------------------------- PETITIONER(S):------------- 1. KOZHIKODE DISTRICT PETROLEUM DEALERS ASSOCIATION, EVERGREEN SYNDICATE BUILDING, DOOR NO 4/228,ARABIND GHOSH ROAD, KOZHIKODE 673 032, REPRESENTED BY ITS SECRETARY, SHAMSUDHIN. 2. K.P SIVANANDAN, M/S. CHOISONS, KANNUR ROAD, KOZHIKODE 673 001. 3. M/S. GREEN FUEL & SERVICES, NARAYANA NAGAR, VADAKARA, KOZHIKODE DISTRICT, REPRESENTED BY ITS MANAGING PARTNER K VINOD. BY ADVS.SRI.HARISANKAR V. MENON SMT.MEERA V.MENON RESPONDENT(S): -------------- 1. THE INCOME TAX OFFICER, WARD-2(3),KOZHIKODE 673 001. WARD-2(3),KOZHIKODE 673 001. 2. THE INCOME TAX OFFICER, WARD 2(2), KOZHIKODE 673 001. WARD 2(2), KOZHIKODE 673 001. 3. JOINT COMMISSIONER OF INCOME TAX. RANGE-2, KOZHIKODE 673 001. RANGE-2, KOZHIKODE 673 001. 4. THE REGIONAL MANAGER, M/S. HINDUSTAN PETROLEUM CORPORATION LTD, SEAPORT AIRPORT ROAD, IRUMPANAM, ERNAKULAM, KOCHI 682 309. SEAPORT AIRPORT ROAD, IRUMPANAM, ERNAKULAM, KOCHI 682 309. 5. THE MANAGER, M/S. INDIAN OIL CORPORATION, GLOBENET MEDIA, PANAMPILLY NAGAR AVENUE, MIG HOUSING SOCIETY, ERNAKULAM, KOCHI 682 036. MIG HOUSING SOCIETY, ERNAKULAM, KOCHI 682 036. R1-3 BY SRI.K.M.V.PANDALAI, SC BY SRI.M.GOPIKRISHNAN NAMBIAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 29348 of 2016 (P) ---------------------------- APPENDIX PJ K. VINOD CHANDRAN, J. ---------------------------------- W.P(C). No.29348 of 2016-P ----------------------------------Dated this the 6[th] day of September, 2016 JUDGMENT The petitioner is aggrieved with the factthat despite an application filed under Section144A of the Income Tax Act, 1961 [for brevity,the Act], the Joint Commissioner, 3[rd]respondent, has issued an order withoutcommunicating a copy to the petitioner. Theassessment year was of 2013-2014, in which thepetitioner raised a contention before the JointCommissioner that the proposal of assessmentmade for the year discloses an issue whichwould be an issue recurring in every year;which is the reimbursement of price paid of petroleum products also being included in theincome of the petitioner. 2. The petitioner is said to be purchasingpetroleum products from respondents 4 & 5 afterpaying the entire amounts for the quantity ofthe product purchased. In effecting retailsale, there is bound to be evaporation, whichthe respondent Oil Companies by virtue of theagreement itself stipulates reimbursement uptoa particular limit. After the sale of theproducts, the petitioner retail dealer isentitled for commission for the quantity of theproducts sold which excludes the lossoccasioned due to evaporation. That loss, tothe extent permissible, is reimbursed, whichcannot be included in the income of thepetitioner; was the short contention. 3. It was in such circumstances that the petitioner filed an application under Section144A of the Act for a clarification from theJoint Commissioner and necessary directions.The Joint Commissioner has looked at the factsof the case and approved the proposal of theAssessing Officer, which may not be a properexercise, especially when a legal question wasraised, for which the Commissioner could onlyhave issued a clarification, based on which thefacts could be considered by the AssessingOfficer itself. As of now this Court would notsay anything on the clarification issued in theform of a recommendation directly to theAssessing Officer, since the petitioner haschallenged the Assessment Order and not suchrecommendation made; refusing issuance of anydirection to the Assessing Officer. 4. The assessment orders are also appealable W.P(C). No.29348 of 2016-P 4. The assessment orders are also appealable W.P(C). No.29348 of 2016-P under the statute. Leaving the petitioner toavail of the remedies under the statute withrespect to the assessment orders, it has to beheld that the petitioner would also be entitledto challenge the order issued under Section144A of the Act. In such circumstances, the 3[rd]respondent is directed to issue a copy of theorder to the petitioner within a period ofthree weeks from the date of receipt of thecertified copy of this judgment, which thepetitioner may challenge; if so advised. Thewrit petition is so disposed of without anyobservation on the merits or an order on costs. Sd/- K. VINOD CHANDRAN, JUDGE. //True Copy//P.A. to Judge.