Wp(C)/10972/2020 Of Paiva Manufacturing Co v. The Income Tax Officer

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL THURSDAY, THE 04TH DAY OF JUNE 2020 / 14TH JYAISHTA, 1942 WP(C).No.10972 OF 2020(V) PETITIONER/S: PAIVA MANUFACTURING CO.(AAKFP7972J), 43/591-M(1), CHITTOOR ROAD, CEMETRY JUNCTION, COCHIN - 682 018, REPRESENTED BY ITS MANAGING PARTNER SHRI TONY PAIVA. BY ADV. SMT.NISHA JOHN RESPONDENT/S: OTHER PRESENT: SRI JOSE JOSEPH SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON04.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT Dated this the 4[th] day of June 2020 The petitioner, a manufacturing company, carrying onthe business of a partnership firm in the year 2008 hasapproached this court for quashing of the ex-parteassessment orders Exts.P2 and P4 for the assessment years2012-13 and 2013-14. The skeleton facts of the case arethat the petitioner filed income tax return for the year2012-13 as Nil. They were uploaded the income tax filethrough electronic system, which is evidenced from Ext.P1.Return was processed under Section 143(1) of the IncomeTax Act. Accordingly, an order was issued by thedepartment ie., the Central Processing Centre, (CPC of theIncome Tax Department at Bangalore) on 9[th] May 2013.Upon receipt of the order, it was noticed that the broughtforward losses to the extent of Rs.22,94,096/- was notconsidered and profit of Rs.21,05,953/- for the sameassessment year had been set off against the brought forward losses, w reflected in the Annexure to the returnsubmitted by the petitioner. All these facts are evidencedfrom the order dated 9[th] May 2013, Ext.P2. 2.On acquiring the knowledge, the petitioneravailed the remedy of Section 154 of the Income Tax Act, bysubmitting a rectification application dated 5[th] June 2013,Ext.P4. However for the next assessment year ie., 2013-14 filed the return, under Section 139 of the Act within thetime and claimed the brought forward losses to the extentof Rs.1,88,143/-. A sum of Rs.11,88,143/- was adjustedagainst the proper assessment year 2013-14. But thepetitioner was astonished to notice the intimation underSection 143(1), whereby the adjustment of brought forwardlosses to the extent of Rs.1,01,633/- was not considered. 3. Learned counsel appearing on behalf of thepetitioner submits that the aforementioned mistake isevidenced by Ext.P4. The department, vide Ext.P5, raisedthe demand of Rs.7,37,950/- and Rs.38,530/- for theassessment years 2012-13 and 2013-14 respectively. Petitioner filed a detailed reply dated 18[th] March 2019,Ext.P6 but no opportunity had been given and despite thereceipt of the reply again a similar notice dated 11[th]February 2020, Ext.P7 reiterating the demand indicated inExt.P5 was issued by the respondent. He submitted that asper the information downloaded from the income tax site on18[th]February 2020, the rectification application isforwarded to the Jurisdictional Assessing Officer but noaction has been taken. 4.Learned counsel appearing on behalf of theIncome Tax Department submits that he has not receivedthe copy of the petition and therefore he is unable to obtainthe instructions or rendered assistance to this Court. 5.Having heard the learned counsel for the parties,appraised the paper book and noticing the fact which arenot in dispute particularly, Ext.P9 dated 18[th] February 2020,which reveals the pendency of the rectification applicationwhich stands transferred to the Jurisdictional AssessingOfficer. The grievance of the petitioner can be vindicated 4.Learned counsel appearing on behalf of theIncome Tax Department submits that he has not receivedthe copy of the petition and therefore he is unable to obtainthe instructions or rendered assistance to this Court. 5.Having heard the learned counsel for the parties,appraised the paper book and noticing the fact which arenot in dispute particularly, Ext.P9 dated 18[th] February 2020,which reveals the pendency of the rectification applicationwhich stands transferred to the Jurisdictional AssessingOfficer. The grievance of the petitioner can be vindicated by issuing directions to the first respondent to takes a callon the rectification application and to decide the samewithin a period of 45 days from the date of receipt of thecopy of the order. Till then, the demand raised vide noticesExts.P5 and P7 is ordered to be kept in abeyance. However,it is made clear that the petitioner is at liberty to assail theoutcome of the decision of the rectification petition, if he sochooses, in accordance with law. The writ petition stands disposed of. Liberty isgranted to the Income Tax Authority to move appropriateapplication in case the averments of the writ petition arefound to be false or incorrect. sab Sd/- AMIT RAWAL JUDGE APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1TRUE COPY OF THE INCOME TAX RETURN FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT FOR THE A. Y. 2012-13.FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT FOR THE A. Y. 2012-13. EXHIBIT P2TRUE COPY OF THE INTIMATION U/S 143(1) DATED 9.5.2013 ISSUED BY THE CENTRAL PROCESSING CENTRE, BANGALORE.DATED 9.5.2013 ISSUED BY THE CENTRAL PROCESSING CENTRE, BANGALORE. EXHIBIT P3TRUE COPY OF REVISED RETURN DATED 5.6.2013 FILED BY THE PETITIONER BEFORETHE 1ST RESPONDENT.5.6.2013 FILED BY THE PETITIONER BEFORETHE 1ST RESPONDENT. EXHIBIT P4TRUE COPY OF THE INTIMATION DATED 6.10.2014 RECEIVED BY THE PETITIONER FROM THE CENTRAL PROCESSING CENTRE, BANGALORE FOR 2013-14.6.10.2014 RECEIVED BY THE PETITIONER FROM THE CENTRAL PROCESSING CENTRE, BANGALORE FOR 2013-14. EXHIBIT P5TRUE COPY OF THE NOTICE DATED 12.03.2019 RECEIVED BY THE PETITIONER FROM THE 1ST RESPONDENT.12.03.2019 RECEIVED BY THE PETITIONER FROM THE 1ST RESPONDENT. EXHIBIT P6TRUE COPY OF THE REPRESENTATION DATED 18.03.2019 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.18.03.2019 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXHIBIT P7TRUE COPY OF THE NOTICE DATED 11.02.2020 RECEIVED BY THE PETITIONER FROM THE 1ST RESPONDENT.11.02.2020 RECEIVED BY THE PETITIONER FROM THE 1ST RESPONDENT. EXHIBIT P8TRUE COPY OF THE REPLY DATED 17.02.2020GIVEN BY THE PETITIONER TO THE 1ST RESPONDENT.GIVEN BY THE PETITIONER TO THE 1ST RESPONDENT. EXHIBIT P9TRUE COPY OF THE INTIMATION DOWNLOADED FROM THE SITE OF THE INCOME TAX DEPARTMENT.FROM THE SITE OF THE INCOME TAX DEPARTMENT.