Wp(C)/19223/2024 Of Green Hopper Hotels And Resorts Pvt. Ltd v. The Principal Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. THURSDAY, THE 1 DAY OF AUGUST 2024 / 10TH SRAVANA, 1946WP(C) NO. 19223 OF 2024 PETITIONER: GREEN HOPPER HOTELS AND RESORTS PVT. LTD.,11/161A, MLA ROAD, CHERAI BEACH, COCHIN,PIN – 683 514,REP BY ITS MANAGING DIRECTOR MR. M.D. KURIAKOSE. BY ADVS.V.B.HARI NARAYANANFAZEEN FAISAL KOMBANEZHUTHNAMRIN SHAJU RESPONDENTS: 1THE PRINCIPAL COMMISSIONER OF INCOME TAX,I.S. PRESS ROAD, COCHIN, PIN – 682 018. 2THE DEPUTY COMMISSIONER OF INCOME TAX,CORPORATE CIRCLE (I), I.S. PRESS ROAD, COCHIN, PIN – 682 018. BY ADVS. SRI. JOSE JOSEPH (SR. SC), SRI. CYIRAC TOM (JR. SC). THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON01.08.2024, ALONG WITH WP(C).19397/2024, 20056/2024 AND CONNECTEDCASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. THURSDAY, THE 1 DAY OF AUGUST 2024 / 10TH SRAVANA, 1946WP(C) NO. 19397 OF 2024 PETITIONER: GREEN HOPPER HOTELS AND RESORTS PVT. LTD.,11/16LA, MLA ROAD, CHERAI BEACH, COCHIN, REP BY ITS MANAGING DIRECTOR, M.D. KURIAKOSE, PIN – 683 514. BY ADVS. V.B.HARI NARAYANANFAZEEN FAISAL KOMBANEZHUTHNAMRIN SHAJU RESPONDENTS: 1THE PRINCIPAL COMMISSIONER OF INCOME TAX,I.S. PRESS ROAD, COCHIN, PIN – 682 018. 2THE DEPUTY COMMISSIONER OF INCOME TAX,CORPORATE CIRCLE (1), I.S. PRESS ROAD, COCHIN, PIN – 682 018. CORPORATE CIRCLE (1), I.S. PRESS ROAD, COCHIN, BY ADVS. SRI. JOSE JOSEPH (SR. SC), SRI. CYIRAC TOM (JR. SC). THIS WRIT PETITION (CIVIL) HAVING COME UP FORADMISSION ON 01.08.2024, ALONG WITH WP(C).19223/2024 ANDCONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THEFOLLOWING: IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. THURSDAY, THE 1 DAY OF AUGUST 2024 / 10TH SRAVANA, 1946WP(C) NO. 20056 OF 2024 PETITIONER: GREEN HOPPER HOTELS AND RESORTS PVT. LTD.,11/161A, MLA ROAD, CHERAI BEACH, COCHIN, REP BY ITS MANAGING DIRECTOR MR. M.D. KURIAKOSE, PIN – 683 514. BY ADVS. V.B.HARI NARAYANANFAZEEN FAISAL KOMBANEZHUTHNAMRIN SHAJU RESPONDENTS: 1THE PRINCIPAL COMMISSIONER OF INCOME TAX,INCOME TAX BUILDING, I.S. PRESS ROAD, COCHIN, PIN – 682 018. 2THE DEPUTY COMMISSIONER OF INCOME TAX,CORPORATE CIRCLE (I), INCOME TAX BUILDING, I.S. PRESS ROAD, COCHIN, PIN – 682 018. BY ADVS. SRI. JOSE JOSEPH (SR. SC), SRI. CYIRAC TOM (JR. SC). THIS WRIT PETITION (CIVIL) HAVING COME UP FORADMISSION ON 01.08.2024, ALONG WITH WP(C).19223/2024 ANDCONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THEFOLLOWING: IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. THURSDAY, THE 1 DAY OF AUGUST 2024 / 10TH SRAVANA, 1946WP(C) NO. 20090 OF 2024 PETITIONERS: GREEN HOPPER HOTELS AND RESORTS PVT LTD,11/161A, MLA ROAD, CHERAI BEACH, COCHIN, REP BY ITS MANAGING DIRECTOR, MR. MD KURIAKOSE, PIN – 683 514. BY ADVS. V.B.HARI NARAYANANFAZEEN FAISAL KOMBANEZHUTHNAMRIN SHAJU RESPONDENTS: 1THE PRINCIPAL COMMISSIONER OF INCOME TAX,INCOME TAX BUILDING, I.S. PRESS ROAD, COCHIN, PIN – 682 018. 2THE DEPUTY COMMISSIONER OF INCOME TAX,CORPORATE CIRCLE (1),I.S. PRESS ROAD, COCHIN, PIN – 682 018. BY ADVS. SRI. JOSE JOSEPH (SR. SC), SRI. CYIRAC TOM (JR. SC). THIS WRIT PETITION (CIVIL) HAVING COME UP FORADMISSION ON 01.08.2024, ALONG WITH WP(C).19223/2024 ANDCONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THEFOLLOWING: JUDGMENT [WP(C) Nos.19223, 19397, 20056 and 20090 of 2024] The petitioner is common in all these writ petitions. PETITIONERS: GREEN HOPPER HOTELS AND RESORTS PVT LTD,11/161A, MLA ROAD, CHERAI BEACH, COCHIN, REP BY ITS MANAGING DIRECTOR, MR. MD KURIAKOSE, PIN – 683 514. BY ADVS. V.B.HARI NARAYANANFAZEEN FAISAL KOMBANEZHUTHNAMRIN SHAJU RESPONDENTS: 1THE PRINCIPAL COMMISSIONER OF INCOME TAX,INCOME TAX BUILDING, I.S. PRESS ROAD, COCHIN, PIN – 682 018. 2THE DEPUTY COMMISSIONER OF INCOME TAX,CORPORATE CIRCLE (1),I.S. PRESS ROAD, COCHIN, PIN – 682 018. BY ADVS. SRI. JOSE JOSEPH (SR. SC), SRI. CYIRAC TOM (JR. SC). THIS WRIT PETITION (CIVIL) HAVING COME UP FORADMISSION ON 01.08.2024, ALONG WITH WP(C).19223/2024 ANDCONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THEFOLLOWING: JUDGMENT [WP(C) Nos.19223, 19397, 20056 and 20090 of 2024] The petitioner is common in all these writ petitions. The issues are identical and the writ petitions cantherefore be disposed of by a common judgment.2.The admitted facts are that the petitioner filedreturns of income for the years 2017-2018, 2018-2019,2021-2022 and 2022-2023, without an audit report asmandated by Section 44AB of the Income Tax Act, 1961(hereinafter referred to as the ‘1961 Act’). The returnswere therefore treated as invalid. The petitioner filedseparate applications under Section 119(2)(b) of the1961 Act praying for condonation of delay in filing thereturns for the aforesaid years. It is the case of thepetitioner that the petitioner is not required, in terms ofthe provisions of the 1961 Act, to upload an audit report,as the income of the petitioner is not income under the head of ‘profit and gains of business’ and the only incomeis ‘income from other sources’. It is submitted at the Barthat the application filed by the petitioner underSection 119(2)(b) for the year 2017-2018 has already beenallowed by the Commissioner. It is submitted that theapplications for the other years, namely 2018-2019, 2021-2022 and 2022-2023, are pending consideration of theCommissioner. 3.The learned Standing Counsel appearing for theIncome Tax Department submits that the contention of thepetitioner that it is not required to file a return along withan audit report as contemplated by the provisions ofSection 44AB of the 1961 Act is absolutely incorrect.However, it is submitted that since the application of thepetitioner under Section 119(2)(b) of the 1961 Act for theyear 2017-2018 has already been allowed by theCommissioner, the applications filed by the petitioner forthe other years can also be directed to be disposed of, andthereafter, if the petitioner were to file returns within the time granted in terms of the order passed underSection 119(2)(b) of the 1961 Act, the question as towhether the returns can be accepted can be taken by thecompetent assessing officer under the Faceless AssessmentScheme. 4.Having heard the learned counsel for thepetitioner and the learned Standing Counsel appearing forthe Income Tax Department, these writ petitions will standdisposed of directing that the applications filed by thepetitioner under Section 119(2)(b) of the 1961 Act for theyears 2018-2019, 2021-2022 and 2022-2023 shall beconsidered by the Principal Commissioner of Income Tax(1[st] respondent). The petitioner shall file its returns takinginto consideration the orders passed by the PrincipalCommissioner of Income Tax (if not already filed) andthereafter the matter shall be proceeded with inaccordance with the law. I make it clear that I have notexpressed any opinion on the merits of the contentionsraised by either side including the contention that the petitioner is/is not required to file an audit report in termsof the provisions contained in Section 44 AB of the 1961Act. Writ petitions are disposed of as above. Sd/- GOPINATH P.JUDGE ats APPENDIX OF WP(C) 19223/2024 PETITIONER’S EXHIBITS Exhibit P1A COPY OF THE LEASE DEED DATED 07/05/2013. petitioner is/is not required to file an audit report in termsof the provisions contained in Section 44 AB of the 1961Act. Writ petitions are disposed of as above. Sd/- GOPINATH P.JUDGE ats APPENDIX OF WP(C) 19223/2024 PETITIONER’S EXHIBITS Exhibit P1A COPY OF THE LEASE DEED DATED 07/05/2013. Exhibit P2A COPY OF THE RETURN AND COMPUTATION DATED24/10/2017.24/10/2017. Exhibit P3A COPY OF THE REFUND ORDER ALLOWING REFUNDFOR THE ASSESSMENT YEAR 2016-17.FOR THE ASSESSMENT YEAR 2016-17. Exhibit P4A COPY OF THE SCREENSHOT FROM THE INCOME TAXPORTAL STATING THAT THE RETURNS FILED BY THEPETITIONER IS INVALID AS PER SECTION 139(9)OF THE INCOME TAX ACT 1961.PORTAL STATING THAT THE RETURNS FILED BY THEPETITIONER IS INVALID AS PER SECTION 139(9)OF THE INCOME TAX ACT 1961. Exhibit P5A COPY OF THE REQUEST SUBMITTED ONLINE DATED26/01/2024.26/01/2024. Exhibit P6A COPY OF THE APPLICATION FILED UNDER SECTION119(2)(B) FOR CONDONATION OF DELAY SUBMITTEDBEFORE THE 1ST RESPONDENT DATED 15/03/2024.119(2)(B) FOR CONDONATION OF DELAY SUBMITTEDBEFORE THE 1ST RESPONDENT DATED 15/03/2024. Exhibit P7A COPY OF THE ACKNOWLEDGEMENT SHOWING RECEIPTOF EXHIBIT P6 APPLICATION FOR CONDONATION OFDELAY.OF EXHIBIT P6 APPLICATION FOR CONDONATION OFDELAY. APPENDIX OF WP(C) 19397/2024 PETITIONER’S EXHIBITS Exhibit P1TRUE COPY OF THE LEASE DEED DATED19/04/2018.19/04/2018. Exhibit P2TRUE COPY OF THE RETURN AND COMPUTATIONDATED 18/2/2022.DATED 18/2/2022. Exhibit P3TRUE COPY OF THE ORDER ALLOWING REFUND FORTHE ASSESSMENT YEAR 2020-2021.THE ASSESSMENT YEAR 2020-2021. Exhibit P4TRUE COPY OF THE INTIMATION DATED 27/12/22TO THE PETITIONER.TO THE PETITIONER. Exhibit P5TRUE COPY OF THE APPEAL IN FORM NUMBER 35DATED 23/1/2023 TOGETHER WITH THE GROUNDSOF APPEAL.DATED 23/1/2023 TOGETHER WITH THE GROUNDSOF APPEAL. Exhibit P6TRUE COPY OF THE APPLICATION FORRECTIFICATION DATED 20/1/2023.RECTIFICATION DATED 20/1/2023. Exhibit P7TRUE COPY OF THE APPLICATION FILED UNDERSECTION 119(2)(B) FOR CONDONATION OF DELAYSUBMITTED BEFORE THE 1 ST RESPONDENT DATED20/03/2024.SECTION 119(2)(B) FOR CONDONATION OF DELAYSUBMITTED BEFORE THE 1 ST RESPONDENT DATED20/03/2024. Exhibit P8TRUE COPY OF THE ACKNOWLEDGEMENT SHOWINGRECEIPT OF EXHIBIT P7 APPLICATION FORCONDONATION OF DELAY.RECEIPT OF EXHIBIT P7 APPLICATION FORCONDONATION OF DELAY. APPENDIX OF WP(C) 20056/2024 PETITIONER’S EXHIBITS Exhibit P1A COPY OF THE LEASE DEED DATED 19/04/2018. Exhibit P2A COPY OF THE RETURN AND COMPUTATION DATED29/10/2018.29/10/2018. Exhibit P3A COPY OF THE REFUND ORDER ALLOWING REFUNDFOR THE ASSESSMENT YEAR 2016-17.FOR THE ASSESSMENT YEAR 2016-17. Exhibit P4A COPY OF THE SCREENSHOT FROM THE INCOME TAXPORTAL STATING THAT THE RETURNS FILED BY THEPETITIONER IS INVALID AS PER SECTION 139(9)OF THE INCOME TAX ACT 1961.PORTAL STATING THAT THE RETURNS FILED BY THEPETITIONER IS INVALID AS PER SECTION 139(9)OF THE INCOME TAX ACT 1961. Exhibit P5A COPY OF THE REQUEST SUBMITTED ONLINE DATED26/01/2024.26/01/2024. Exhibit P6A COPY OF THE APPLICATION FILED UNDERSECTION LL9(2)(B) FOR CONDONATION OF DELAYSUBMITTED BEFORE THE 1ST RESPONDENT DATED13/03/2024.SECTION LL9(2)(B) FOR CONDONATION OF DELAYSUBMITTED BEFORE THE 1ST RESPONDENT DATED13/03/2024. Exhibit P7A COPY OF THE ACKNOWLEDGEMENT SHOWINGRECEIPT OF EXHIBIT P6 APPLICATION FORCONDONATION OF DELAY.RECEIPT OF EXHIBIT P6 APPLICATION FORCONDONATION OF DELAY. APPENDIX OF WP(C) 20090/2024 PETITIONER’S EXHIBITS Exhibit P1A COPY OF THE LEASE DEED DATED 19/04/2018. Exhibit P2A COPY OF THE RETURN AND COMPUTATION DATED26/10/2022.26/10/2022. Exhibit P3A COPY OF THE INCOME TAX RETURN ALLOWINGREFUND FOR THE ASSESSMENT YEAR 2020-2021.REFUND FOR THE ASSESSMENT YEAR 2020-2021. Exhibit P4A COPY OF THE INTIMATION DATED 14/12/22 TOTHE PETITIONER.THE PETITIONER. Exhibit P5A COPY OF THE RESPONSE TO DEFECTIVE NOTICEDATED 29/12/22.DATED 29/12/22. Exhibit P7A COPY OF THE ACKNOWLEDGEMENT SHOWINGRECEIPT OF EXHIBIT P6 APPLICATION FORCONDONATION OF DELAY.RECEIPT OF EXHIBIT P6 APPLICATION FORCONDONATION OF DELAY. APPENDIX OF WP(C) 20090/2024 PETITIONER’S EXHIBITS Exhibit P1A COPY OF THE LEASE DEED DATED 19/04/2018. Exhibit P2A COPY OF THE RETURN AND COMPUTATION DATED26/10/2022.26/10/2022. Exhibit P3A COPY OF THE INCOME TAX RETURN ALLOWINGREFUND FOR THE ASSESSMENT YEAR 2020-2021.REFUND FOR THE ASSESSMENT YEAR 2020-2021. Exhibit P4A COPY OF THE INTIMATION DATED 14/12/22 TOTHE PETITIONER.THE PETITIONER. Exhibit P5A COPY OF THE RESPONSE TO DEFECTIVE NOTICEDATED 29/12/22.DATED 29/12/22. Exhibit P6A COPY OF THE INTIMATION DATED 15/12/2023INVALIDATING THE RETURN.INVALIDATING THE RETURN. Exhibit P7A COPY OF THE APPLICATION FILED UNDERSECTION 119(2)(B) FOR CONDONATION OF DELAYSUBMITTED BEFORE THE 1ST RESPONDENT DATED20/03/2024.SECTION 119(2)(B) FOR CONDONATION OF DELAYSUBMITTED BEFORE THE 1ST RESPONDENT DATED20/03/2024. Exhibit P8A COPY OF THE ACKNOWLEDGEMENT SHOWINGRECEIPT OF EXHIBIT P7 APPLICATION FORCONDONATION OF DELAY.RECEIPT OF EXHIBIT P7 APPLICATION FORCONDONATION OF DELAY.