Court In Pala Marketing Co-Operative Society Ltd v. Union Of India And Others In [(2009) 311 Itr 177 (Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN THURSDAY, THE 7TH DAY OF AUGUST 2014/16TH SRAVANA, 1936 WP(C).No. 12790 of 2014 (W) ------------------------------------------ PETITIONER : --------------------- THE TRAVANCORE CEMENTS EMPLOYEES CO-OPERATIVE BANK LTD. NO.K-234, NATTAKOM, KOTTAYAM DISTRICT, REPRESENTED BY SECRETARY MR.M.P.RAMESH. BY ADV. SRI.RAJU K.MATHEWS RESPONDENT : ------------------------ THE COMMISSIONER OF INCOME TAX, KOTTAYAM - 686 002. BY ADV.SRI.JOSE JOSEPH, S.C THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Msd. WP(C).No. 12790 of 2014 (W) ------------------------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXHIBIT-P1: A TRUE COPY OF THE APPLICATION FOR CONDONATION OF THE DELAY IN RESPECT OF THE ASSESSMENT YEAR 2006-2007.DELAY IN RESPECT OF THE ASSESSMENT YEAR 2006-2007. EXHIBIT-P1(A): A TRUE COPY OF THE APPLICATION FOR CONDONATION OF THE DELAY IN RESPECT OF THE ASSESSMENT YEAR 2008-2009. DELAY IN RESPECT OF THE ASSESSMENT YEAR 2008-2009. EXHIBIT-P2: A TRUE COPY OF THE ORDER NO.C.304 (15)/COND/CIT/KTM/2011-12 DATED 18.11.2011.DATED 18.11.2011. EXHIBIT-P2(A): A TRUE COPY OF THE ORDER NO.C.304(33)/COND/CIT/KTM/2011-12 DATED 31.12.2012. DATED 31.12.2012. RESPONDENT(S)' EXHIBITS: ----------------------------------------- NIL //TRUE COPY// P.A.TO JUDGE. Msd. K. VINOD CHANDRAN, J.=====================W.P.(C) No. 12790 of 2014======================Dated this the 7[th] day of August, 2014 J U D G M E N T The petitioner is aggrieved with the non acceptance ofthe returns and the rejection of the application forcondonation of delay filed under Section 119(2)(b) of theIncome Tax Act, 1961. The subject assessment years are2006-07 and 2008-09. The petitioner, a Co-operativeSociety failed to file the returns within the time provided ie.,within the due date, which is on the 30[th] of October of theassessment year. The petitioner's contention is that, forfiling the returns, an audit is mandatory and with respect toa Co-operative Society it has to be carried on by theCo-operative department of the State. It is only by reasonof the delay committed thereon, which is not attributable tothe petitioner that, there was delay in filing of the returns isthe argument. The petitioner relies on a judgment of this W.P.(C) No. 12790 of 2014 Court in Pala Marketing Co-operative Society Ltd. v.Union of India and others in [(2009) 311 ITR 177(Kerala)]. 2. The learned Standing Counsel, Government of India (Taxes) would however distinguish the aforecited judgment,on the ground that, the judgment took in the delay causedby the department, in appointing auditors with respect toCo-operative Societies. Herein, the contention raised onbehalf of the Union of India is that, the delay is attributableto the petitioner itself and not solely on the department ofthe State Government. 3. The admitted case is that for both the years, theaudit certificates were received respectively on 10.05.2010and 06.05.2011. The returns were filed for the respectiveyears on 13.01.2011 and 11.11.2011. Hence, for the firstyear, there was a delay of 8 months and for the second yeara delay of 6 months. The Commissioner, who wasexercising the discretion conferred under Section 119(2)(b) of the Act rejected the delay condonation application for W.P.(C) No. 12790 of 2014 3. The admitted case is that for both the years, theaudit certificates were received respectively on 10.05.2010and 06.05.2011. The returns were filed for the respectiveyears on 13.01.2011 and 11.11.2011. Hence, for the firstyear, there was a delay of 8 months and for the second yeara delay of 6 months. The Commissioner, who wasexercising the discretion conferred under Section 119(2)(b) of the Act rejected the delay condonation application for W.P.(C) No. 12790 of 2014 both the years, since the explanation given was found to beunsatisfactory. Even going by the dates as mentionedabove, there is a further delay after the audit wascompleted. For this, the official respondent has filed astatement, contending that the auditor who conducted theaudit, in the annexure to the audit statement, specificallystated that the delay in completing the audit report is due tonon receipt of necessary statements from the Society intime. 4. Pala Marketing Co-operative Society (supra) foundon facts that the delay in audit in that case was notattributable to the assessee therein. The hardshipcontemplated under Section 119(2)(b) was also found infavour of the assessee since huge amounts were due asrefund and the assessee had been reeling under heavy lossfor very many years. The learned Single Judge categoricallyfound that to consider belated return for refund, necessarilythe delay has to be condoned under Section 119(2)(b) andon facts found the grounds raised for such condonation to be satisfactory. 5. In the instant case, it cannot be said that the delay was not attributable to the petitioner Society. Though theassessee in the cited case and that herein are Co-operativeSocieties; the similarity ends there. The statutory audit tobe carried out by the department was delayed; but theauditor has specifically noticed in the audit report that thedelay was attributable to the Society. In fact there isfurther delay after receipt of the audit report which thepetitioner seeks to baance the Chartered Accountant who,according to the petitioner has to conduct the audit underSection 44 AB of the Act. 6. While for the assessment year 2006-07, thepetitioner by Ext.P1 application raises the contention on thebasis of Section 44 AB; for the assessment year 2008-09 thepetitioner notices in Ext.P1(a) application the proviso tosub-clause(d) of Section 44 AB. The said proviso exemptsany person required to get his accounts audited by anyother law from subjecting itself to another audit as W.P.(C) No. 12790 of 2014 mandated in the provision. The contentions raised areconflicting and in the totality of circumstance is liable to berejected. There is no hardship also pleaded by thepetitioner in Ext.P1 and P1(a). 7. The Commissioner having exercised the discretionary power and having rejected the delaycondonation application; this Court is not inclined to invokethe extra ordinary jurisdiction under Article 226 of theConstitution of India, causing interference of the discretionexercised or the refusal to exercise it by the Commissioner.There is nothing on facts to commend this Court to makesuch interference. The Writ petition hence stands dismissed. Parties areleft to suffer their respective costs. K. VINOD CHANDRAN,JUDGE SB