Wp(C)/10210/2011 Of Ram Bahadu Thakur Ltd v. The Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAMPRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 4 DAY OF NOVEMBER 2022 / 13TH KARTHIKA, 1944WP(C) NO. 10210 OF 2011 PETITIONER/S: RAM BAHADU THAKUR LTD.SIDDHARTH BUILDING, WILLINGDON ISLAND,, COCHIN-682 003, REPRESENTED BY ITS, DIRECTOR MR.S.M.SHARMA. BY ADV SRI.N.JAMES KOSHY RESPONDENT/S: 1THE COMMISSIONER OF INCOME TAX C.R.BUILDING, I.S.PRESS ROAD,, KOCHI-682 018. 2THE JOINT COMMISSIONER OF INCOME TAXC.R.BUILDING, I.S.PRESS ROAD,, KOCHI-682 018.BY ADV SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS WRIT PETITION (CIVIL) HAVING COME UP FORADMISSION ON 04.11.2022, THE COURT ON THE SAME DAYDELIVERED THE FOLLOWING: W.P.(C). No. 10210 of 2011 P.V.KUNHIKRISHNAN, J. ====================================================== W.P.(C) No. 10210 of 2011 ============================================================= Dated this the 4[th ]day of November, 2022 JUDGMENT The above writ petition is filed with following prayers: “i) call for the records relating to Exhibits P6 and P10Orders and quash the same by a writ of certiorari orsuch other appropriate writ, direction or order. ii) direct the 2[nd] Respondent assessing officer to considerthe return filed by the Petitioner afresh after taking onrecord the audited Profit & Loss Accounts and BalanceSheet prepared by the Petitioner pursuant to Orderdated 11-4-2007 of the CLB in CA No. 136 of 2007 inCP 56 of 1996 (ii) pass such other orders as may be deemed just andproper in the facts and circumstances of the case.” (sic) 2.The petitioner is a public limited company. It is the case of the petitioner that due to certain disputes within the management of the petitioner company, the accounts of the petitioner company could not be finalised. Under suchcircumstances, it is submitted that the petitioner in order to W.P.(C). No. 10210 of 2011 adhere to the mandate provided under section 139 of the IncomeTax Act filed its returns for the assessment year 1997-98 basedon a provisional profit and loss and balance sheet. But, the JointCommissioner of Income Tax treated it as an invalid return. It isthe case of the petitioner that the company law board had alsorestrained the petitioner from finalising its accounts from 1995-96 onwards till the petition before the company law board isdisposed of. Therefore, the petitioner approached the companylaw board seeking permission for signing the accounts and thesame was granted to the petitioner. After finalising theaccounts, the petitioner filed revision before the Commissionerof Income Tax against the Order of the Joint Commissioner ofIncome Tax. But the said petition was dismissed by theCommissioner as per Ext.P10. Hence, this writ petition is filed. 3.Heard the counsel for the petitioner and the StandingCounsel appearing for the respondents. W.P.(C). No. 10210 of 2011 4. The short point raised by the petitioner is that the revisional authority dismissed the revision without givingadequate opportunity to the petitioner to raise the contentionsraised in the revision memorandum. The petitioner is relyingExt.P11 order passed by the Income Tax Appellate Tribunal in asimilar situation as far as the assessment years 1996-97 and1998-99 are concerned. The Standing Counsel for therespondents submitted that sufficient opportunity was given tothe petitioner and it is clear from paragraph 2 of Ext.P10 order.The counsel submitted that even in the absence of the petitioner,the revisional authority considered the matter in detail andpassed Ext.P10 order and there is nothing to interfere. 5. This Court considered the contentions of the petitioner and the respondents. It is clear from a reading of paragraph 2 ofExt.P10 that sufficient opportunity was given by the revisionalauthority to the petitioner. But the petitioner has got a case that W.P.(C). No. 10210 of 2011 5. This Court considered the contentions of the petitioner and the respondents. It is clear from a reading of paragraph 2 ofExt.P10 that sufficient opportunity was given by the revisionalauthority to the petitioner. But the petitioner has got a case that W.P.(C). No. 10210 of 2011 the revisional authority has not considered Ext.P11 order passed by the Appellate Authority while deciding the matter. I don’twant to make any observation about the merits of the case. Inthe facts and circumstances of the case, I think one moreopportunity can be given to the petitioner to raise all thecontentions raised in this writ petition. All the contentionsraised in this writ petition on merit, are left open to be raisedbefore the revisional authority. To facilitate the revisionalauthority to reconsider the matter, Ext.P10 can be set aside. Therefore, this writ petition is allowed in the following manner: 1. Ext.P10 is set aside. 2. The 1[st] respondent is directed to reconsider thematter, after giving an opportunity of hearing to thepetitioner, as expeditiously as possible. 3. All the contentions raised by the petitioner in thiswrit petition are left open and the petitioner is free W.P.(C). No. 10210 of 2011 to raise all the contentions, including theapplicability of Ext.P11 order. 4. Till final orders are passed by the revisionalauthority, status quo as on today shall continue. das sd/- P.V.KUNHIKRISHNANJUDGE APPENDIX OF WP(C) 10210/2011 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF ORDER DATED 9.1.1997 OF THE COMPANY LAW BOARD, CHENNAI IN C P NO.56/1996. Exhibit P2 TRUE COPY OF ORDER DATED 18.08.2000 PASSED BY THE COMPANY LAW BOARD, NEW DELHI IN C P NO.56/1996. Exhibit P3 TRUE COPY OF THE ACKNOWLEDGMENT DATED 28.11.1997 FOR FILING THE RETURN FOR ASSESSMENT YEAR 1997-98 .28.11.1997 FOR FILING THE RETURN FOR ASSESSMENT YEAR 1997-98 . Exhibit P4 TRUE COPY OF MINUTES OF THE INTERIM BOARD MEETING DATED 18.11.1997.BOARD MEETING DATED 18.11.1997. Exhibit P5 TRUE COPY OF PROVISIONAL PROFIT AND LOSS ACCOUNT AND BALANCE SHEET.LOSS ACCOUNT AND BALANCE SHEET. Exhibit P6 TRUE COPY OF ORDER DATED 18.03.1999 PASSED BY THE JOINT COMMISSIONER OF INCOME-TAX (ASSESSMENT), SPECIAL RANGE-1, ERNAKULAM. Exhibit P7 TRUE COPY OF C A NO.136 OF 2007 IN C P56 OF 1996 ALONG WITH THE ORDER THEREIN DATED 11.04.2007. Exhibit P8 TRUE COPY OF AUDITED ACCOUNTS FOR 1997-98.1997-98. Exhibit P9 TRUE COPY OF REVISION PETITION DATED NIL FILED BY THE PETITIONER. Exhibit P10 TRUE COPY OF APPELLATE ORDER DATED 3.4.2008 OF THE COMMISSIONER OF INCOMETAX, KOCHI FOR ASSESSMENT YEAR 1997-98. Exhibit P11 TRUE COPY OF ORDER DATED 6.5.2010 FOR ASSESSMENT YEAR 1996-97 AND ORDER DATED 24.10.2008 FOR ASSESSMENT YEAR 1998-99 OF THE INCOME TAX APPELLATE TRIBUNAL, COCHIN. Exhibit P12 TRUE COPY OF JUDGMENT DATED 6.2.2009 PASSED BY THIS HON'BLE COURT IN WPC NO.37524/2008. W.P.(C). No. 10210 of 2011 Exhibit P13TRUE COPY OF THE ORDER DATED 30.11.2011N SENT BY THE TAX RECOVERY OFFICER, ERNAKULAM TO M/S. BAL PHARMA LIMITED. TRUE COPY OF THE ASSESSMENT ORDER DATED 30.09.2009 FOR THE ASSESSMENT YEAR 1998-99 ISSUED BY THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 1 (1), RANGE-1, KOCHI TO THE PETITIONER.Exhibit P14TRUE COPY OF THE TAX PRAYER'S COUNTERFOIL DATED 22.11.2008. TRUE COPY OF NOTICE DATED 09.04.2015 AND ATTACHMENT ORDER OF THE PETITIONER'S RESIDENT SAMUDRA MAHAL, MUMBAI DATED 13.03.2007 ISSUED BY THE TAX RECOVERY OFFICER, ERNAKULAM, KOCHI-18. Exhibit P15TRUE COPY OF THE WRITTEN SUBMISSION DATED 13.08.2015 SUBMITTED BY THE PETITIONER TO THE COMMISSIONER OF INCOME TAX, ERNAKULAM, KOCHI-18.Exhibit P16TRUE COPY OF THE JUDGMENT IN WPC NO.22583 OF 2011 DATED 23.08.2011 OF THE HON'BLE HIGH COURT OF KERALA, ERNAKULAM.Exhibit P17TRUE COPY OF THE APPEAL FILED UNDER RULE 45 OF THE INCOME TAX RULES IN FORM NO.35 BY THE PETITIONER BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS), ENAKULAM.