Ext.p2 Is A Representation Submitted By The v. Union Of India [2008(1) Klt 589

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE FRIDAY, THE 5TH DAY OF AUGUST 2016/14TH SRAVANA, 1938 WP(C).No. 13691 of 2013 (J) ---------------------------- PETITIONER(S): ------------- V.SANKARANARAYANAN S/O.VEERAMANI IYER,RESIDING AT 'SWATHI' HOUSE NO.11/284, THACHOTTUKAVU, MALAYINKEEZH, THIRUVANANTHAPURAM 695 571. BY ADV. SMT.MEENA.A. RESPONDENT(S): -------------- 1. THE COMMISSIONER OF INCOME TAX THIRUVALLA 689 101 THIRUVALLA 689 101 2. THE INCOME TAX OFFICER WARD 1, THIRUVALLA 689 101 BY SRI.JOSE JOSEPH, SC, THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-08-2016,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: bp APPENDIX PETITIONER(S)' EXHIBITS----------------------- EXHIBIT P1: TRUE COPY OF THE ORIGINAL RETURN DATED 18/8/2004 18/8/2004 EXHIBIT P2: A TRUE COPY OF THE REVISED RETURN DATED 11/2/201011/2/2010 EXHIBIT P3: A COPY OF THE ORDER DATED 21/10/2009 OF THE HON'BLE SUPREME COURT OF INDIA IN CIVIL APPEAL NOS.6997-702 OF 2009HON'BLE SUPREME COURT OF INDIA IN CIVIL APPEAL NOS.6997-702 OF 2009 EXHIBIT P4: A PHOTOCOPY OF THE ORDER DATED 23/8/2010 OF THE INCOME TAX APPELLATE TRIBUNAL , CHENNAI BENCH, IN ITA NO.232/MDS/2010THE INCOME TAX APPELLATE TRIBUNAL , CHENNAI BENCH, IN ITA NO.232/MDS/2010 EXHIBIT P5:COPY OF THE JUDGEMNT OF THE DIVISION BENCH OF THE HON'BLE MADRAS HIGH COURT INWA (MD) NO:1098/2011 AND CONNECTED CASES.THE HON'BLE MADRAS HIGH COURT INWA (MD) NO:1098/2011 AND CONNECTED CASES. EXHIBIT P6:COPY OF THE CIRCULAR DT 13/4/2016 ISSUED BY THE GOVERNMENT OF INDIA,MINISTRY OF FINANCE, DEPARTMENT OF REVENUE(CETRAL BOARD OF DIRECT TAXES) (ITA - I DIVISION)THE GOVERNMENT OF INDIA,MINISTRY OF FINANCE, DEPARTMENT OF REVENUE(CETRAL BOARD OF DIRECT TAXES) (ITA - I DIVISION) RESPONDENT(S)' EXHIBITS:NIL. //TRUE COPY// P.A. TO JUDGE bp A.M.SHAFFIQUE, J * * * * * * * * * * * * W.P.C.No.13691 of 2013 ---------------------------------------- Dated this the 5[th] day of August 2016 J U D G M E N T Petitioner has approached this Court seeking for a directionto the 2[nd] respondent to pass appropriate orders in Ext.P2representation. 2.Ext.P2 is a representation submitted by the petitionerinter alia contending that he was entitled for exemption underSection 10(10C) of the Income Tax Act, 1961 (hereinafter referredto as 'the IT Act') with reference to the amount received by himunder the Early Retirement Option Scheme, 2013 (EROS).According to the petitioner, he was working in ICICI Bank duringthe financial year 2003-'04 and he filed a return without claimingexemption. The Income Tax authorities had intimated thepetitioner by way of Ext.P1 that, after deducting the tax payable,the petitioner is entitled for refund of Rs.56,210/- which was paidto the petitioner. In Ext.P2, it is stated that the balance taxrefundable after adjusting the amount received as refund wouldbe Rs.1,28,950/-. Ext.P2 is a representation submitted by the petitioner 3.Petitioner relies upon the judgments, Exts.P3, P4 andP5 to contend that the petitioner was eligible to get exemption. 4.Learned counsel for the petitioner points out that, inseveral instances, the Apex Court as well as the High Court ofMadras had directed grant of exemption to similarly placedpersons and therefore the petitioner should also get the aforesaidbenefit. Learned counsel also placed reliance upon the judgmentof the learned Single Judge in Pala Marketing Co-operativeSociety Ltd. v. Union of India [2008(1) KLT 589]. Ext.P2 is a representation submitted by the petitioner 3.Petitioner relies upon the judgments, Exts.P3, P4 andP5 to contend that the petitioner was eligible to get exemption. 4.Learned counsel for the petitioner points out that, inseveral instances, the Apex Court as well as the High Court ofMadras had directed grant of exemption to similarly placedpersons and therefore the petitioner should also get the aforesaidbenefit. Learned counsel also placed reliance upon the judgmentof the learned Single Judge in Pala Marketing Co-operativeSociety Ltd. v. Union of India [2008(1) KLT 589]. 5.On the other hand, a statement is filed by the learnedStanding Counsel appearing for the 2[nd] respondent inter aliastating that since the jurisdiction over the case vests with theIncome Tax Officer, Ward 4, the return of income was processedby the Income Tax Officer, Ward-4 on 30/03/2005 and issued arefund of Rs.53,030/- and interest under Section 244A ofRs.3,180/-. Subsequently, on 18/02/2010, the assessee filed arevised return for the assessment year 2004-05 offering areduced total income of Rs.5,13,520/- and claimed additionalrefund of Rs.1,28,950/-. Since the revised return of income hasbeen filed beyond the due date for filing a valid return, no actionwas taken. In so far as no document has been produced forcondoning the delay in filing the revised return, the same was not accepted. 6.Heard learned counsel for the petitioner and thelearned Standing Counsel. It is apparent that the revised returnwas filed out of time. Even if there is some provision under the ITAct to condone the delay, still no steps had been taken by thepetitioner to approach either the Board or the competentCommissioner of Income Tax seeking for exemption within thespecified time, whereas an attempt had been made to file arevised return, that too, after a period of five years. Under suchcircumstances, I do not think that this Court will be justified indirecting Ext.P2 to be considered. 7.However, learned counsel for the petitioner placesreliance on the judgment in Exts.P3, P4 and P5 to indicate thatsuch benefit had been given to various other similarly placedpersons. The question whether the petitioner is also a personentitled for the very same benefit, is a question of fact, whichrequires to be considered. 8.The short question is whether there is any procedureby which the petitioner can make such a claim. However, takinginto account the fact that similarly placed persons have been W.P.C.No.13691/2013 4 given the benefit of refund, I am of the view that it would beappropriate to permit the petitioner to submit a representation tothe Commissioner of Income Tax, Kottayam, who has jurisdictionto entertain such matters and it is for the said authority toconsider the claim and pass appropriate orders, especially in thelight of the judgment of the Apex Court and Madras High Court asstipulated in Exts.P3, P4 and P5 and Ext.P6 circular. In the result, this writ petition is disposed of as under: i)Petitioner is permitted to file a representation to theCommissioner of Income Tax, Kottayam within a period of onemonth from the date of receipt of a copy of this judgment. ii)On receipt of such representation, the Commissioner ofIncome Tax shall consider the matter in the light of thejudgments, Exts.P3, P4 and P5 and the Circular, Ext.P6 and passappropriate orders within a further period of three months fromthe date of receipt of such representation. (sd/-) (A.M.SHAFFIQUE, JUDGE)