Wa/1275/2014 Of The Travancore Cements Employees Co-Op.bank Ltd v. Commissioner Of Income Tax

PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN &THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN FRIDAY, THE 30TH DAY OF OCTOBER 2015/8TH KARTHIKA, 1937 WA.No. 1275 of 2014 IN WP(C).12790/2014 ----------------------------------------------------- AGAINST THE ORDER/JUDGMENT IN WP(C) 12790/2014 DATED 07-08-2014 APPELLANTS/PETITIONER: ---------------------------- THE TRAVANCORE CEMENTS EMPLOYEES CO-OP.BANK LTD NO.K-234, NATTAKOM, KOTTAYAM DISTRICT REPRESENTED BY SECRETARY MR.M.P.RAMESH. BY ADV. SRI.RAJU K.MATHEWS RESPONDENT/RESPONDENT: ------------------------------- COMMISSIONER OF INCOME TAX KOTTAYAM-686002. BY ADV. SRI.P.K.R.MENON,SR.COUNSEL, GOI (TAXES) BY ADV. SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 30-10-2015, THECOURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN &ANU SIVARAMAN, JJ. = = = = = = = = = = = = = = = = = = = W.A.No.1275 of 2014 = = = = = = = = = = = = = = = = = = = Dated this the 30[th] day of October, 2015Dated this the 30[th] day of October, 2015 JUDGMENT Thottathil B.Radhakrishnan, J. 1.We have heard the learned counsel for the appellant and thelearned counsel for the Department.learned counsel for the Department. 2.The appellant is a co-operative society of employees ofTravancore Cements. For the two years in relation to which thiswrit appeal is filed, the appellant's Income Tax returns weredelayed. The reason attributed by the appellant for the delay wasthe delay in the statutory audit of its accounts by the auditorunder the provisions of the Co-operative Societies Act and Rules.The I.T.Department took the view that the delay in institutioncannot be condoned. The learned single Judge held that thematter was within the realm of discretion of the officer concernedand that discretion has been appropriatelyexercised. Theprecedent referred to by the appellant was held to be of no avail. 3.In this appeal, additional evidence is produced in the forms ofAnnexures A1 and A2 along with I.A.No.1199/2015. We take onrecord those documents. Annexure A1 is the Audit Certificate andAudit Memorandum issued for the year 2005-2006 and AnnexureA2 is the Audit Certificate and Audit Memorandum issued for theyear 2007-2008. Those documents are issued by the Auditorunder the Kerala Co-operative Societies Act and Rules stating thatthe audit was not completed in time because the records were notsubmitted by the Society. We see that there is a blanketstatement to that effect in the audit certificates. But on a deeperconsideration, we see that the fee for the audit was remitted bythe Society with the Co-operative Department within the timelimit and it is then open to the auditor to come in a very point oftime and also ask for further documents. If there is suchinordinate delay which stood against the audit being completedby the statutory auditor under the KCS Act within the requisitetime frame, that authority had powers even to summon and takeover the documents. On the whole, we are satisfied thatbalancing the different situations, it would be only just and sj reasonable to hold that the appellant had demonstrated fairlyacceptable reasons to have the discretion exercised by thestatutory authority in its favour to permit it to file the I.T.returnsfor the years 2006-2007 and 2008-2009 respectively. We directthat such returns shall be filed within three weeks from the dateof receipt of a copy of this judgment and the same shall bereceived, if they are otherwise in order. In the result, this writ appeal is allowed vacating the impugnedjudgment, quashing Exts.P2 and P2(a) orders and directing thatthe statutory authority will accept the Income Tax returnstreating that the delay stands condoned by the effect of thisjudgment. sd/- Thottathil B.Radhakrishnan, Judge sd/-Anu Sivaraman, Judge TRUE COPY P.A.TO JUDGE