Wp(C)/30626/2012 Of Mangalam Service Co-Operative Bank Limited v. The Income Tax Officer

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC WEDNESDAY, THE 2ND DAY OF JANUARY 2013/12TH POUSHA 1934 WP(C).No. 30626 of 2012 (C) --------------------------- PETITIONER(S): ------------------------- 1. MANGALAM SERVICE CO-OPERATIVE BANK LIMITED NO.9701, PO MANGALAM, MALAPPURAM-676 561, PO MANGALAM, MALAPPURAM-676 561, REPRESENTED BY ITS SECRETARY ABDUL MAJEED V.M. 2. EDARIKODE SERVICE CO-OPERATIVE BANK LIMITED NO. F.10739, EDARIKODE PO, MALAPPURAM-676 501, EDARIKODE PO, MALAPPURAM-676 501, REPRESENTED BY ITS SECRETARY, ABDUL JALEEL K. BY ADVS.SRI.P.RAMAKRISHNAN SRI.C.ANIL KUMAR SRI.PRATAP ABRAHAM VARGHESE RESPONDENT(S): ---------------------------- 1. THE INCOME TAX OFFICER, WARD III, TIRUR, OFFICE OF THE INCOME TAX OFFICER, TARIFF BAZAR, TOWN HALL ROAD, TIRUR, MALAPPURAM-676 101. 2. THE ASSISTANT COMMISSIONER OF INCOME TAX , OFFICE OF THE ASSISTANT COMMISSIONER OF INCOME TAX OFFICER, TARIFF BAZAR, TOWN HALL ROAD, TIRUR, MALAPPURAM-676 101. OFFICE OF THE ASSISTANT COMMISSIONER OF INCOME TAX OFFICER, TARIFF BAZAR, TOWN HALL ROAD, TIRUR, MALAPPURAM-676 101. 3. THE COMMISSIONER OF INCOME TAX (CIB), KOCHI, ERNAKULAM-682 031. 4. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT OF INDIA,MINSTRY OF FINANCE, NEW DELHI-110 001. BY ADV. SRI.JOSE JOSEPH, SC, INCOME TAX THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.NO.30626/2012 C APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1- TRUE COPY OF THE JUDGMENT DATED 21-7-2010 IN WPC NO.22796/2010. EXHIBIT P2- TRUE COPY OF JUDGMENT DATED 4-11-2010 IN WPC NO. 33520/2010. EXHIBIT P3- TRUE COPY OF THE NOTICE DATED 16-3-2011 ISSUED BY THE 1STRESPONDENT TO THE 1ST PETITIONER. EXHIBIT P4- TRUE COPY OF THE EXPLANATION DATED 24-3-2012 SUBMITTED BYTHE 1ST PETITIONER. EXHIBIT P5- TRUE COPY OF NOTICE DATED 6-6-2012 ISSUED BY THE 1STRESPONDENT. EXHIBIT P6- TRUE COPY OF EXPLANATION DATED 20-06-2012 SUBMITTED BY THE1ST PETITIONER. EXHIBIT P7- TRUE COPY OF NOTICE DATED 30-11-2012 ISSUED BY THE 1STRESPONDENT TO THE 1ST PETITIONER. EXHIBIT P8- TRUE COPY OF NOTICE DATED 12-03-2011 ISSUED BY THE 1STRESPONDENT TO THE 2ND PETITIONER. EXHIBIT P9- TRUE COPY OF NOTICE DATED 26-11-2012 ISSUED BY THE 1STRESPONDENT TO THE 2ND PETITIONER. RESPONDENTS' EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.30626 OF 2012(C) -------------------------------------------------- Dated this the 2[nd] day of January, 2013 J U D G M E N T Heard the Counsel for the petitioner and the learnedStanding Counsel for the Revenue. 2. Petitioners are Co-operative Societies. First petitioner has been issued Exts.P3, P5 and P7 notices and the 2[nd]petitioner has been issued Exts.P8 and P9 notices. By thesenotices, information as provided under Section 142(1) of theIncome Tax Act is called for from the petitioners. It ischallenging these notices the writ petition has been filed and thecontention raised by the learned counsel for the petitioners isthat the petitioners are not “persons” as contemplated in Section142(1)of the Act. Therefore, according to him, the notices arewithout jurisdiction and are illegal. 3. In support of the above contention, counsel contended that on an earlier occasion, notices were issued by the IncomeTax Department to Co-operative Societies, invoking the power 2. Petitioners are Co-operative Societies. First petitioner has been issued Exts.P3, P5 and P7 notices and the 2[nd]petitioner has been issued Exts.P8 and P9 notices. By thesenotices, information as provided under Section 142(1) of theIncome Tax Act is called for from the petitioners. It ischallenging these notices the writ petition has been filed and thecontention raised by the learned counsel for the petitioners isthat the petitioners are not “persons” as contemplated in Section142(1)of the Act. Therefore, according to him, the notices arewithout jurisdiction and are illegal. 3. In support of the above contention, counsel contended that on an earlier occasion, notices were issued by the IncomeTax Department to Co-operative Societies, invoking the power under Section 133(6) of the Income Tax Act and that thosenotices were challenged before this court. It is stated that thenotices were upheld by the Single Bench and Division Bench ofthis court and that in an SLP filed, the Apex Court has issuednotice and stayed the proceedings. On this basis Counsel seeksinterference of this court, in this writ petition. 4. From the submission made on behalf of the petitionersitself, it is obvious that the proceedings which are the subjectmatter of the SLP now pending before the Apex Court wereunder Section 133(6) of the Income Tax Act, where as theimpugned notices which are called in question in this writpetition, are issued under Section 142(1) of the Act. Section 142(1) enables the Assessing Officer to require the personsmentioned in the Section to furnish the information as mentionedtherein. The expression “person” has been defined in Section 2(31) of the Act. 5. A combined reading of Section 142(1) and Section 2(31), in my view, leads to the only conclusion that Co-operativeSocieties like petitioners herein are also “persons” as defined inthe Income Tax Act. If that be so, notices which are impugned in this writ petition cannot be held as issued without jurisdiction. 6. In so far as the proceedings which are pending beforethe Apex Court are concerned, as I have already stated, thosewere initiated under Sections 133(6) of the Act. The terms ofSection 133(6) and Section 142(1) are incomparable andtherefore the pending proceedings before the Apex Courtcannot be of any assistance to the petitioners. Even if it isassumed that the proceedings are of any relevance, since thiscourt is bound by the Division Bench judgment of this court, thefact that the Apex Court has stayed the judgment is no reason toentertain the writ petition. The legal position in this behalf hasbeen clarified by a Division Bench of this court in the judgment inAbdu Rahiman V. District Collector, Malappuram (2009(4)KLT 485). Writ Petition fails and is dismissed. (ANTONY DOMINIC) JUDGE