Wa/1086/2011 Of M/S.kerala Automobiles Limited v. Assistant Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 1ST SEPTEMBER 2011 / 10TH BHADRA 1933 WA.No. 1086 of 2011() --------------------- AGAINST THE JUDGEMENT/ORDER DATED 26/05/2011 IN WPC.17701/2007 .................... APPELLANT(S): / PETITIONER -------------- M/S.KERALA AUTOMOBILES LIMITED ARALUMOODU PO, THIRUVANANTHAPURAM 695 123 REPRESENTED BY ITS MANAGING DIRECTOR MR.JACOB. BY ADV. SRI.D.S.SREEKUMARAN SMT.T.S.MAYA (THIYADIL) RESPONDENT(S): / RESPONDENTS --------------- 1. ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE (I) THIRUVANANTHAPURAM, PIN - 695 001. 2. COMMISSIONER OF INCOME TAX, THIRUVANANTHAPURAM, PIN - 695 001. ADV. SRI.P.K.R.MENON,SR.COUNSEL, GOI(TAXES) FOR R SRI.JOSE JOSEPH, SC, FOR INCOME TAX FOR R THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 01/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. ....................................................................W.A. No.1086 of 2011....................................................................Dated this the 1[st] day of September, 2011. J U D G M E N T Ramachandran Nair, J. The appellant is a Kerala Government Company which until 1997-98 had a carried forward loss of around Rs.13crores. During the year 1997-1998 the Company filed returnon due date, which was processed and intimation was issuedunder Section 143(1) of the Income Tax Act (hereinafterreferred to as the Act for short) on 12/06/1998. However theappellant noticed certain mistakes in the original return andtherefore filed a revised return as provided under Section 143(1B) of the Act, then prevailing in the statute. Even thoughrevised return was filed which should have been processedunder Section 143(1) again by the Officer or even a regularassessment should have been made after issuance of noticeunder sub Section (2) of Section 143 of the Act, the AssessingOfficer did not act upon the revised return. Therefore, theappellant filed a revision before the Commissioner withinordinate delay and the Commissioner dismissed the same. It was against this order of the Commissioner issued underSection 264 of the Act the appellant filed WP(C), which wasdismissed by the learned Single Judge by holding that therewas no order that could be revised by the Commissioner underSection 264 of the Act. 2.Before us, learned counsel for the appellantcontented that the intimation issued under Section 143(1)itself is an order which could be revised by the Commissioneron a petition filed under Section 264 of the Act. Alternativelylearned counsel contended that since the Assessing Officerhas not acted upon the revised return filed under Section 143(1B) on 30/03/1999 which was within the time prescribedunder Section 139(5) of the Act , the appellant is entitled to atleast a mandamus to the Assessing Officer to consider therevised return in accordance with law. 3.Learned Standing Counsel appearing for therespondents referred to the findings of the learned SingleJudge wherein the revised return filed on 31/12/1999 wasclearly stated as beyond the time limit prescribed underSection 139(5) of the Act. After hearing both sides we feel the appellant is entitled to the second relief prayed for that is amandamus to the Assessing Officer to consider the revisedreturn filed under Section 143(1B) of the Act. The learnedStanding Counsel rightly pointed out that revised return filedon 30/03/1999 only could be considered and the delayedreturn filed on 31/12/1999 should be ignored. 3.Learned Standing Counsel appearing for therespondents referred to the findings of the learned SingleJudge wherein the revised return filed on 31/12/1999 wasclearly stated as beyond the time limit prescribed underSection 139(5) of the Act. After hearing both sides we feel the appellant is entitled to the second relief prayed for that is amandamus to the Assessing Officer to consider the revisedreturn filed under Section 143(1B) of the Act. The learnedStanding Counsel rightly pointed out that revised return filedon 30/03/1999 only could be considered and the delayedreturn filed on 31/12/1999 should be ignored. We therefore allow the Writ Appeal by vacating thejudgment of the learned Single Judge and dispose of the WP(C)by directing the Assessing Officer to process the revisedreturn filed under Section 143(1B) in accordance with Sections143(1) & 143(1A) of the Act making all adjustments andallowances permissible under the Act. We also make it clearthat if assessment is modified and fresh orders are issued,consequential benefit should be granted to the appellant inlater years also by rectifying orders issued for later years. (C.N.RAMACHANDRAN NAIR, JUDGE) (P.S.GOPINATHAN, JUDGE)