Wp(C)/18909/2020 Of B.mohanachandran Nair v. Assistant Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL THURSDAY, THE 15TH DAY OF OCTOBER 2020 / 23RD ASWINA, 1942 WP(C).No.18909 OF 2020(K) PETITIONER: B.MOHANACHANDRAN NAIRAGED 45 YEARSPRASANTHI CASHEW CO. MANGAD P O, KOLLAM - 691015. RESPONDENT: BY ADVS.SRI.ANIL D. NAIRSRI.R.SREEJITHSMT.TELMA RAJUSMT.SRI HARINI S.P. ASSISTANT COMMISSIONER OF INCOME TAXCIRCLE - 1, KOLLAM - 691001. SC - SRI. CHRISTOPHER ABRAHAM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON15.10.2020, ALONG WITH WP(C).18919/2020(L), THE COURT ON THE SAMEDAY DELIVERED THE FOLLOWING: IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL THURSDAY, THE 15TH DAY OF OCTOBER 2020 / 23RD ASWINA, 1942WP(C).No.18919 OF 2020(L) PETITIONER: K.R.USHASREEAGED 45 YEARSSAI EXPORT ENTERPRISES, MANGAD P.O. KOLLAM 691 015. RESPONDENT: BY ADVS.SRI.ANIL D. NAIRSRI.SREEJITH R.NAIRSMT.TELMA RAJUSMT.SRI HARINI S.P. ASSISTANT COMMISSIONER OF INCOME TAXCIRCLE -1, KOLLAM 691 001. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON15.10.2020, ALONG WITH WP(C).18909/2020(K), THE COURT ON THESAME DAY DELIVERED THE FOLLOWING: JUDGMENT Dated this the 15th day of October 2020 This order of mine shall dispose of the captioned writpetitions by two different petitioners seeking theimplementation of the consequential orders passed by theIncome Tax Tribunal. 2. As per the facts in W.P.(C).No.18909/2020 on behalfof Sri.B.Mohanachandran Nair, Prasanthi Cashew Companywhich is engaged in the business of processing and export ofcashew, filed return for the assessment year 2003-2004claiming deduction of Rs.96,62,109/- under Section 80HHC ofthe Income Tax Act, 1961, on the profit from export turnover.The Assessing Officer did not grant the deduction as sought butreworked the deduction at Rs.20,88,046/-. Against theaforementioned order, the petitioner therein filed an appealbefore the Commissioner of Income Tax (Appeals) which waspartially accepted but confirmed the order of the AssessingOfficer in respect of two items. The petitioner preferred anappeal before the Income Tax Appellate Tribunal. The Income Tax Appellate Tribunal vide order dated 06.01.2012 acceptedthe contention of the petitioner and appeal has been partlyallowed whereby the matter has been remanded to theAssessing Officer for making fresh examination of the case andit is still pending. 3. In the other case W.P.(C).NO.18919/2020 bySmt.K.R.Ushasree, Sai Export Enterprises, for the assessmentyears 2002-2003, 2003-2004 and 2004-2005 claimeddeduction which was not accepted by the Assessing Officer butwas reworked. In the appeal preferred by the petitioner, thefirst item was partly accepted and ultimately same order as inthe other case was passed, i.e., the Income Tax AppellateTribunal remanded the matter to the Assessing Officer. 4.Sri.Anil.D.Nair, the learned counsel appearing onbehalf of the petitioners in both the writ petitions, submits thatalmost eight years have passed but the order of the IncomeTax Appellate Tribunal has not been adhered to in letter andspirit and the Assessing Officer is still seized of the matter. TheOfficers cannot sit over the matter for the final period as they are legitimately expected to pass an order within a reasonableperiod. 5.This Court had already admitted this writ petition on15.09.2020. Sri.Christopher Abraham, the learned counselappearing on behalf the Income Tax Department do not denythe aforementioned facts and pendency of the matter beforethe Assessing Officer in view of the remand order of the ITAT. Having heard the learned counsel for the parties and 4.Sri.Anil.D.Nair, the learned counsel appearing onbehalf of the petitioners in both the writ petitions, submits thatalmost eight years have passed but the order of the IncomeTax Appellate Tribunal has not been adhered to in letter andspirit and the Assessing Officer is still seized of the matter. TheOfficers cannot sit over the matter for the final period as they are legitimately expected to pass an order within a reasonableperiod. 5.This Court had already admitted this writ petition on15.09.2020. Sri.Christopher Abraham, the learned counselappearing on behalf the Income Tax Department do not denythe aforementioned facts and pendency of the matter beforethe Assessing Officer in view of the remand order of the ITAT. Having heard the learned counsel for the parties and appraised the paper book, without expressing any opinion onthe merits of the matter, I dispose of the writ petitions byissuing directions to the respondents to decide the assessmentproceedings in respect of the assessment years referred toabove in letter and spirit in view of the order of the ITAT dated06.01.2012 within a time line. Since eight years have beenconsumed, let the above exercise be undertaken after affordingan opportunity of hearing to the petitioners within a period ofone month from the receipt of the certified copy of thisjudgment. It is made clear that in case the direction of thisCourt is not complied with by passing order in accordance with WP(C).Nos.18909/2020 & 18919/2020 law, the Assessing Officer shall be burdened with cost ofRs.25,000/- each in both cases, to be personally recoveredfrom his salary. These writ petitions are disposed of. nak Sd/- AMIT RAWAL JUDGE 7 APPENDIX OF WP(C) 18909/2020 PETITIONER'S EXHIBITS: EXHIBIT P1TRUE COPY OF THE ORDER OF THE INCOME TAXAPPELLATE TRIBUNAL DATED 6.1.2012.EXHIBIT P2TRUE COPY OF LETTER DATED 22.05.2018 SUBMITTED BY THE PETITIONER TO THE RESPONDENT. EXHIBIT P3TRUE COPY OF THE LETTER DATED 17.01.2020SUBMITTED BY THE PETITIONER TO THE RESPONDENT. 8 APPENDIX OF WP(C) 18919/2020 PETITIONER'S EXHIBITS: EXHIBIT P1TRUE COPY OF THE ORDER OF THE INCOME TAXAPPELLATE TRIBUNAL DATED 27.04.2012. EXHIBIT P2TRUE COPY OF LETTER DATED 07.03.2018 SUBMITTED BY THE PETITIONER TO THE RESPONDENT. EXHIBIT P3 TRUE COPY OF LETTER DATED 17.1.2020 SUBMITTED BY THE PETITIONER TO THE RESPONDENT. //TRUE COPY// P.A TO JUDGE