Wp(C)/22457/2003 Of Archana Bar & Dwaraka Tourist Home v. The Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR THURSDAY, THE 24TH JULY 2008 / 2ND SRAVANA 1930 WP(C).No. 22457 of 2003(W) -------------------------- PETITIONER: ------------ ARCHANA BAR AND DWARAKA TOURIST HOME MAIN ROAD, PAYYANNUR, KANNUR DISTRICT REPRESENTED BY PARTNER, MR. JOHN KALLAT. BY ADV. SRI.T.M.SREEDHARAN SRI.TONY CHACKO RESPONDENTS: ------------- 1. THE COMMISSIONER OF INCOME TAX (CENTRAL) COCHIN, KANDAMULATHIL TOWERS, M.G. ROAD, COCHIN-682 011. 2. THE DEPUTY COMMISSIONER OF INCOME TAX (CENTRAL CIRCLE) AYAKAR BHAVAN, NORTH BLOCK, MANANCHIRA, CALICUT-1. BY SHRI.GEORGE K GEORGE, SC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.22457/2003 APPENDIX PETITIONER'S EXHIBITS P1 :COPY OF ASSESSMENT ORDER FOR THE BLOCK PERIOD DATED 23/05/2002ISSUED BY R2. P2 :COPY OF ORDER OF COMMISSIONER OF INCOME TAX VIDE NO.Cr.38(II)/TECH/CIT(C)-CHN/02-03 DATED 05/09/2002. P3 :COPY OF INTIMATION RECEIVED UNDER SEC.143(1)(a) DATED 29/03/2001FROM RESPONDENT ACCEPTING THE RETURNS SUBMITTED BY PETITIONER. P4 :COPY F REUTRN OF INCOME FOR ASSESSMENT YEAR 1999-2000 SUBMITTEDBY PETITIONER BEFORE THE RESPONDENT. //TRUE COPY// jg PA TO JUDGE. C.N.RAMACHANDRAN NAIR, J. ---------------------- WP(C) No. 22457 of 2003 ------------------------------------ Dated, this the 24[th] day of July, 2008 J U D G M E N T Petitioner is challenging Ext.P2 order whereunder theCommissioner has disposed the revision petition filed by thepetitioner against the block assessment completed after search forthe assessment years 1991-92 to 2001-02. 2.I heard learned counsel appearing for petitioner andlearned Standing Counsel appearing for the Income TaxDepartment. 3.The only ground raised before me is against the rejectionof petitioner’s contention that the returned income for theassessment year 1999-2000 was assessed in regular assessmentand the same income was subjected to tax in the block assessmentas well. However, petitioner’s claim was rejected by theCommissioner holding that the regular return was filed after payingtax after the date of search. This is not disputed by petitioner eventhough petitioner has a case that substantial amount of tax waspaid in advance i.e. prior to the date of search. In any case,petitioner cannot ask for exclusion of income from block assessmentbased on return filed after date of search because proceedings forassessment under Section 158BC is inclusive of undisclosed income WP(C) No.22457/2003 up to the date of search. Therefore, if there is duplication ofassessment of same figure, one in block assessment and other inthe regular assessment, it is up to petitioner to approach theAssessing Officer with a rectification application for rectifying theregular assessment in terms of Section 154 of the Income Tax Actfor the assessment year 1999-2000. Since the writ petition ispending for long, petitioner is granted six weeks' time from today tofile rectification application for rectification of regular assessmentcompleted in the form of intimation issued under Section 143(1)(a)for the assessment year 1999-2000. If any application is filedwithin the time granted as above, the Assessing Officer shouldconsider the block period assessment and exclude such of theincome assessed in the block assessment from regular assessmentand rectify the proceedings issued under Section 143(1)(a) of theAct treating the rectification application filed under Section 154 ofthe Income Tax Act as one filed in time. However, if AssessingOfficer has suo motu corrected the assessment order there is noneed for issuing any further proceedings. The writ petition is disposed of as above. (C.N.RAMACHANDRAN NAIR, JUDGE.)