Wp v. Commissioner Of Income Tax

IN THR HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3 DAY OF MARCH 2020 BEFORE| THR HON BLE MR.JUSTICE S. SUNIL DUTT YADAV .WRIT PETITION No.4488 /2020 (IT) Between: ».K. and Udupi District Co-operative|Fish Marketing Federation Ltd.,|Mulihithlu, Bolar,Mangalore — 975 OO1.Rep. by its Managing DirectorMr. Harish Kumar. —.. Petitioner | (By Sri Mahesh R. Uppin, Advocate) And 1.|Commissioner of Income Tax (Appeals),Aayakar Bhavan,C.R. Building, N.G. Road,Attavara,Mangaluru — 9795 OO1. 2 |Income Tax Officer,Ward — 2(9),|C.R. Building,|N.G. Road, Attavara,Mangaluru — 975 OO1.... Respondent (By Sri Jeevan J. Neeralgi, Advocate) This Writ Petition is filed under Articles 226 & 227of the Constitution of India, praying to quash theassessment order dated 26.12.2019 passed in PANNo.AADAT6313M by the R-2 marked as Annexure-A orin the alternative quash the notice dated 11.02.2020issued by the R2 marked as Annexure-D and etc. This Writ Petition coming on for preliminary.hearing this day, the Court made the following: ORDER The petitioner is a credit Co-operative Society,registeredunderthe.provisions oT Co-operative Societies Act, 1959 and is stated to beengaged in the business of facilitating market for thefish catches of its members, credit facilities, etc. | Karnataka | D _The petitioner submits that the profits ofpetitioner—Society is eligible for deduction under Section8OP(2)(a)(i) of the Income Tax Act, 1961 (TI.T. Act’ forbrevity). It is further submitted that the petitioner’sassessment was concluded allowing the benefit ofdeduction as contemplated under Section 8OP of the I.T.Act for the year 2017-2018, which was however reopened by the Department under Section 263 of theI.T. Act on the ground that the original assessmentorder was prejudicial to the interests of Revenue andfresh assessment proceedings were initiated. 3.|It is submitted that the entire sum otfRs.4,17,62,372/- that was permitted as deductionunder Section SOP of the I.T. Act on the earlier occasionwas now treated as ‘income from other source’ and wasbrought under the purview of tax as per the order dated26.12.2019 and subsequently the demand notice cameto be raised. 4It is submitted that the petitioner has/preferred an appeal before respondent No.l undersection 246A of the I.T. Act, which is pending disposal.It is further submitted that the application for stay ofdemand was made before respondent No.2 and therespondent No.2 as per the order at Annexure-D hasdeclined to consider the petition for stay by ordering that the petitioner had to pay 20% of the demand andas such demand was not met, the application wasrejected. 5The petitioner has challenged the said order at Annexure-D and has raised various contentions on|merits of the matter, including that the income that isderived from fixed deposit is allowed as permissiblededuction and reliance is placed on the judgment of this Court in the case . oM/s.Guttigedarara Credit Co-operative Society Ltd.Vi.The Income Tax officer (ITA No.29/2015 disposed off on 9.6.2015)TO |contend that a wide meaning ought to be assigned tothe word ‘attributable to’ as tound in the said Section|(Section 8OP of I.T. Act). 6. Learned counsel appearing for respondents. would however contend that the appeal is still pendingadjudication and the order that is passed is a reasonedorder. Once the application for stay has been disposed 5The petitioner has challenged the said order at Annexure-D and has raised various contentions on|merits of the matter, including that the income that isderived from fixed deposit is allowed as permissiblededuction and reliance is placed on the judgment of this Court in the case . oM/s.Guttigedarara Credit Co-operative Society Ltd.Vi.The Income Tax officer (ITA No.29/2015 disposed off on 9.6.2015)TO |contend that a wide meaning ought to be assigned tothe word ‘attributable to’ as tound in the said Section|(Section 8OP of I.T. Act). 6. Learned counsel appearing for respondents. would however contend that the appeal is still pendingadjudication and the order that is passed is a reasonedorder. Once the application for stay has been disposed off on the ground that 20% deposit of the demand asrequired has not been made as per the Circular No.1914.as modified by subsequent circular No.F 404/72/93,.the assessee has a right to approach the jurisdictionalAdministrative Principal Commissioner of Income Tax(PCIT)/ Commissioner of Income Tax (CIT) for review ofdecision of the officer. This is in light of the fact thatSenior Administrative Officer has been conferred with|power to look into the imposition of condition relating todeposit. This Court in the order dated 23.02.2017.passed in W.P.No.1339-1342/2017 at para-16 hasfurther observed that PCIT is also to examine as to'whether the grounds as made out by the assessee thatassessment|1S“unreasonablyhighpitched”OTtherequirement of deposit would lead to genuine hardshipbeing caused to the assessee.. T |In light of the procedure that is provided forin the circular referred to above and noting that in the present case the application for stay has been rejectedprimarily on the inability of the petitioner to havedeposited 20% of the demand, keeping all thecontentions open, the petitioner is at liberty to explorethe procedure provided for under the circular byapproaching the Administrative Senior Authority asprovided for in the circular and seek for review of theorder including the direction relating to deposit andPCIT/CIT would dispose of the said application of thepetitioner, if made within a period of one week from thedate of release of this order expeditiously. — 8.|sri Jeevan J. Neeralgi, the learned standingcounsel appearing for respondents submits that afteraffording an opportunity of hearing to the petitioner onthe application to be submitted by him, necessaryorders would be passed within a period of two weeks ofreceipt of the representation of the petitioner. © OQ During this whole process, it is needless to state that no coercive measures would be taken to'recover the demand which is a matter still pending consideration. It is also open for the Appellate| Authority to dispose of the appeal expeditiously. subject to the above, this petition isdisposed off VGR Sd/- JUDGE|