Wp(C)/30488/2023 Of M/S Ramanthali Service Co-Operative Bank Ltd v. Income Tax Officer, Ward-4, Kannur

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH MONDAY, THE 18 DAY OF SEPTEMBER 2023 / 27TH BHADRA, 1945 WP(C) NO. 30488 OF 2023 PETITIONER: M/S RAMANTHALI SERVICE CO-OPERATIVE BANK LTDRAMANTHALI, PAYYANNUR, REPRESENTED BY ITS SECRETARY SURENDRAN K.V, PIN – 670 364.BY ADV S.ARUN RAJ RESPONDENTS: 1INCOME TAX OFFICER, WARD-4, KANNUR AAYAKAR BHAVAN, KONNOTHUMCHAL, CHOVVA P.O, KANNUR, PIN – 670 006.AAYAKAR BHAVAN, KONNOTHUMCHAL, CHOVVA P.O, KANNUR, PIN – 670 006. 2INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCHKENDRIYA BHAVAN, KAKKANAD, COCHIN, PIN – 682 037.KENDRIYA BHAVAN, KAKKANAD, COCHIN, PIN – 682 037. SRI. CHRISTOPHER ABRAHAM, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.09.2023,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DINESH KUMAR SINGH, J. --------------------------------------------------------- W.P.(C). No. 30488 of 2023--------------------------------------------------------- Dated this the 18[th] day of September, 2023. --------------------------------------------------------- JUDGMENT The present writ petition has been filed impugning Exhibit P5order dated 16.09.2022 passed by the Income Tax AppellateTribunal, Cochin Bench in M.P. No. 242/Coch/2021, filed underSection 254(2) of the Income Tax Act, 1961 ('Act, 1961' for short)seeking rectification of Exhibit P3 order dated 14.03.2017 in ITA No.361/Coch/2012 in respect of the assessment years 2009-2010. 2. The petitioner claims to be a co-operative society. Theassessing officer has passed Exhibit P1 order dated 22.12.2011 forthe assessment years 2009-2010 assessing the tax liability at Rs.10,64,549/- and initiating penalty proceedings under Sections271F, 271B, 271(1)(b) and 271(1)(c) separately against thepetitioner. Challenging the same, the petitioner has filed an appealbefore the first appellate authority, who as per Exhibit P2 orderdated 21.09.2012, dismissed the same. Against the said order, thepetitioner has filed a second appeal before the Income TaxAppellate Tribunal, Cochin Bench and the Tribunal, as per ExhibitP3 order dated 14.03.2017, allowed the appeal in part holding thatthe petitioner, being a co-operative society, is eligible for deduction under Section 80P(2) of the Act, 1961 and the assessing officerwas directed to grant the deduction claimed by the petitioner. 3. It appears that after the said order was passed, a FullBench of this Court, in the judgment dated 19.03.2019 in ITA No.97 of 2016 has taken a contrary view as that of the view taken bythe Tribunal. Accordingly, the Department has filed variousMiscellaneous Petitions in respect of different assessees, includingExt. P4 petition against the petitioner, under Section 254(2) of theAct, 1961 before the Income Tax Appellate Tribunal seekingrectification of Ext. P3 order. It is submitted that those applicationswere filed beyond the limitation period prescribed under Section254(2) of the Act, 1961 and therefore, the same were notmaintainable under law. The application for rectification in respectof the petitioner is dated 30.09.2019, which is much beyond theperiod of limitation of six months provided for filing such anapplication. 4. The learned counsel for the petitioner also submits thatthe aforesaid Full Bench judgment has been set aside by the ApexCourt and therefore, the application filed by the Departmentseeking rectification of the order dated 14.03.2017 was barred bylimitation. Even otherwise, the Department was seeking review ofthe order of the Income Tax Appellate Tribunal and there is no provision in the Act, 1961 to review the order passed by the IncomeTax Appellate Tribunal. It is also submitted that the very ground onthe basis of which the impugned order was passed does not survive,in view of the judgment of the Apex Court setting aside the FullBench judgment dated 19.03.2019. 4. The learned counsel for the petitioner also submits thatthe aforesaid Full Bench judgment has been set aside by the ApexCourt and therefore, the application filed by the Departmentseeking rectification of the order dated 14.03.2017 was barred bylimitation. Even otherwise, the Department was seeking review ofthe order of the Income Tax Appellate Tribunal and there is no provision in the Act, 1961 to review the order passed by the IncomeTax Appellate Tribunal. It is also submitted that the very ground onthe basis of which the impugned order was passed does not survive,in view of the judgment of the Apex Court setting aside the FullBench judgment dated 19.03.2019. 5. In view of the above, I find that the application filed by theDepartment seeking rectification of the order dated 14.03.2017 inrespect of the petitioner was not maintainable and it was filed muchbeyond the six months’ period of limitation prescribed under Section254(2) of the Act, 1961. Accordingly, the present writ petition is allowed and Exhibit P5order dated 16.09.2022 is set aside. sd/- DINESH KUMAR SINGH, JUDGE. Rv : 5 : APPENDIX OF WP(C) 30488/2023 PETITIONER’S EXHIBITS: RESPONDENTS’ EXHIBITS: NIL True Copy