Wp(C)/11027/2020 Of Tharu And Sons v. Assistant Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL THURSDAY, THE 04TH DAY OF JUNE 2020 / 14TH JYAISHTA, 1942WP(C).No.11027 OF 2020(C) PETITIONER/S: THARU AND SONS418/2, KARIPPAYI ROAD, RAJAGIRI P. O., KALAMASSERY, ERNAKULAM - 683 104, REPRESENTED BY ITS MANAGING PARTNER MR. ANTONY THARU. BY ADV. SRI.ANIL D. NAIR RESPONDENT/S: 1ASSISTANT COMMISSIONER OF INCOME TAXCIRCLE 1, ALUVA. 2THE DIVISIONAL MECHANICAL ENGINEER SOUTHERN RAILWAY, DRM'S OFFICE, THYCAUD, THIRUVANANTHAPURAM. OTHER PRESENT: SRI DINESH RAO SC FOR RAILWAY, SRI CHRISTOPHER ABRAHAM SC FOR INCOME TAX 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 4th day of June 2020 The petitioner, a partnership firm, carrying on contract work with different clients, including the SouthernRailway; one of the major clients, has approached thisCourt for quashing of Exts.P14 and P14A, the demandnotices raised by the Income Tax Department. 2. In support of the aforementioned prayer, it hasbeen alleged that on account of the business/work of theSouthern Railway, on receipt of the payment from them,there was a deduction as per the provisions of Section 194C of the Income Tax Act and accordingly, Form 16A wasissued. On that basis the petitioner filed the income taxreturns by taking credit on the tax deducted at source(TDS) as evidenced by Form 16A. But when theassessment was done, it was found that no such creditwas given. The petitioner had been facing such problem from 2008-09 onwards. After completion of theassessment, the petitioner had preferred Ext.P1application under Section 154 of the Act for rectification ofthe assessment order, while producing the TDS certificatesissued by the Southern Railway pertaining to theassessment year 2008-09. This position continued forevery year and the petitioner had been filing applicationsunder Section 154 of the Act for the assessment years2009-10, 2010-11, 2012-13, 2013-14 and 2014-15, asevidenced from Exts.P2 to P6. 3. The learned counsel for the petitioner submits thatthe rectification application, Ext.P1 was filed way back on19.11.2010. It is also submitted that the petitioner hadfiled Exts.P2 to P6 rectification applications respectively on 16.02.2011 (for the assessment year 2009-10),10.12.2013 (for the assessment year 2010-11), 31.03.2015 (for the assessment year 2012-13), 23.03.2016 (assessment year 2013-14) and 06.03.2018(for the assessment year 2014-15) and all applications arepending. The petitioner again filed a consolidatedrepresentation, showing the statements of the rectificationapplications vide Ext.P12 dated 09.06.2016, which is alsopending consideration. Despite the pendency of theaforesaid applications, the petitioner received Exts.P14and P14A demand notices, to make the payment for theassessment years referred above. It is contended that theconcerned officer of the Income Tax Department had nottaken any call or decision on the rectification applications;particularly when Form 16A had been issued. It is yet tobe decided whether the petitioner is correct or not, butthere has to be a decision, in accordance with law. 4. Issue notice before admission. Sri.ChristopherAbraham, learned Standing Counsel for the Income TaxDepartment submits that the petitioner is not entitled to the credit as submitted, but do not deny the status of thependency of the applications as evidenced from Exts.P2 toP6 and stated that the writ petition can be disposed of bydirecting the 1[st] respondent to decide the rectificationapplications; Exts.P2 to P6 (supra). 5. Having heard the learned counsel for both parties 4. Issue notice before admission. Sri.ChristopherAbraham, learned Standing Counsel for the Income TaxDepartment submits that the petitioner is not entitled to the credit as submitted, but do not deny the status of thependency of the applications as evidenced from Exts.P2 toP6 and stated that the writ petition can be disposed of bydirecting the 1[st] respondent to decide the rectificationapplications; Exts.P2 to P6 (supra). 5. Having heard the learned counsel for both parties and without expressing any opinion on merits, I dispose ofthis writ petition by issuing directions to the 1[st] respondentto consider and dispose of all the rectification applicationsat Exts.P2 to P6; the particulars of which have alreadybeen given and the status of which is evident from Ext.P12dated 09.06.2016, after affording an opportunity ofhearing to the petitioner, by issuing a speaking order, asto whether the benefit of the credit on account of Form16A TDS, the petitioner is entitled to or otherwise, within aperiod of two months from the date of receipt of a copy ofthis writ petition. Till such time, the demand raised at WP(C).No.11027 OF 2020(C) ..6.. Exts.P14 and P14A shall be kept in abeyance. It is alsomade clear that the interim stay is only till theadjudication of the rectification applications. The writ petition is disposed of accordingly. SB/08/06/2020 Sd/-AMIT RAWALJUDGE WP(C).No.11027 OF 2020(C) ..7.. APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF LETTER DATED 19.11.2010 FOR THE ASSESSMENT YEAR 2008-09.FOR THE ASSESSMENT YEAR 2008-09. EXHIBIT P2TRUE COPY OF SEC.154 RECTIFICATION APPLICATION FILED FOR THE YEAR 2009-10.APPLICATION FILED FOR THE YEAR 2009-10. EXHIBIT P3TRUE COPY OF SEC.154 RECTIFICATION APPLICATION FILED FOR THE YEAR 2010-11.APPLICATION FILED FOR THE YEAR 2010-11. EXHIBIT P4TRUE COPY OF SEC.154 RECTIFICATION APPLICATION FILED FOR THE YEAR 2012-13.APPLICATION FILED FOR THE YEAR 2012-13. EXHIBIT P5TRUE COPY OF SEC.154 RECTIFICATION APPLICATION FILED FOR THE YEAR 2013-14.APPLICATION FILED FOR THE YEAR 2013-14. EXHIBIT P6TRUE COPY OF 143(1) INTIMATION FOR THEASSESSMENT YEAR 2014-15.ASSESSMENT YEAR 2014-15. EXHIBIT P7TRUE COPY OF 143(1) INTIMATION FOR THEASSESSMENT YEAR 2015-16.ASSESSMENT YEAR 2015-16. EXHIBIT P8TRUE COPY OF INCOME TAX REFUND STATUS FOR THE ASSESSMENT YEAR 2016-17.FOR THE ASSESSMENT YEAR 2016-17. EXHIBIT P9TRUE COPY OF INCOME TAX REFUND STATUS FOR THE ASSESSMENT YEAR 2017-18.FOR THE ASSESSMENT YEAR 2017-18. EXHIBIT P10TRUE COPY OF THE INCOME TAX REFUND STATUS FOR THE ASSESSMENT YEAR 2018-19.STATUS FOR THE ASSESSMENT YEAR 2018-19. EXHIBIT P11TRUE COPY OF THE INCOME TAX REFUND STATUS FOR THE ASSESSMENT YEAR 2019-20.STATUS FOR THE ASSESSMENT YEAR 2019-20. EXHIBIT P12 EXHIBIT P13 EXHIBIT P14 EXHIBIT P14 A TRUE COPY OF LETTER DATED 9.6.2016 FORTHE ASSESSMENT YEAR 2008-09 SUBMITTED BY THE PETITIONER. TRUE COPY OF LETTER DATED 15.5.2019 ISSUED BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT. TRUE COPY OF LETTER DATED 12.2.2020 ISSUED BY THE 1ST RESPONDENT. TRUE COPY OF LETTER DATED 12.5.2020 ISSUED BY THE 1ST RESPONDENT.