Wp(C)/31539/2023 Of Peroorkada Service Co-Operative Bank Ltd v. The Income Tax Officer

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH TUESDAY, THE 26 DAY OF SEPTEMBER 2023 / 4TH ASWINA, 1945 WP(C) NO. 31539 OF 2023 PETITIONER/S: PEROORKADA SERVICE CO-OPERATIVE BANK LTD NO.T.1412, PEROORKADA P.O, THIRUVANANTHAPURAM DISTRICT, KERALA, REPRESENTED BY ITS SECRETARY, PIN - 695005 BY ADV C.A.JOJO RESPONDENT/S: 1 THE INCOME TAX OFFICER, INCOME TAX OFFICE, WARD-2(1) KOWDIAR, TRIVANDRUM, PIN - 695003 KOWDIAR, TRIVANDRUM, PIN - 695003 2 COMMISSIONER OF INCOME TAX (APPEALS)-1 2.OFFICE OF THE COMMISSIONER OF INCOME TAX (APPEALS), TRIVANDRUM, PIN - 695003 2.OFFICE OF THE COMMISSIONER OF INCOME TAX (APPEALS), TRIVANDRUM, PIN - 695003 3 THE COMMISSIONER OF INCOME TAX (APPEALS) NATIONAL FACELESS ASSESSMENT CENTRE, NORTH BLOCK, NEW DELHI-110001, PIN - 110001 NATIONAL FACELESS ASSESSMENT CENTRE, NORTH BLOCK, NEW DELHI-110001, PIN - 110001 4 ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL 1ST FLOOR, BLOCK C-I & C II, KENDRIYA BHAVAN, KAKKANAD, PIN - 682307 INCOME TAX APPELLATE TRIBUNAL 1ST FLOOR, BLOCK C-I & C II, KENDRIYA BHAVAN, KAKKANAD, PIN - 682307 OTHER PRESENT: JOS WINSON-SC-IT THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J U D G M E N T Heard Mr C A Jojo learned Counsel for the petitioner, and Mr Jos Winson learned Standing Counsel for the Department. 2. The present writ petition has been filed challenging the demand and recovery notices in Exts.P12, P13 and P14 for recovery of tax assessed at Rs.90,81,24,665/- in respect of three Assessment Years 2016-17, 2017-18 and 2018-19 for the income of the petitioner. The petitioner had challenged the Assessment Orders before the Commissioner of Income Tax (Appeals), who is the first Appellate Authority. The first Appellate Authority had passed the orders in the appeals filed as Exts.P1, P6 and P9. The petitioner has impugned these orders passed by the first Appellate Authority before the Income Tax Appellate Authority by filing Exts. P2, P7 and P10, along with stay applications Exts.P3, P8 and P11. W.P.(C) No.31539/2023 3. The petitioner claims to be a registered Co- operative Society. Learned Counsel for the petitioner submits that the petitioner’s income is from interest earned on deposits made by the petitioner in Co-operative Societies. Therefore, it is deductible under the provisions of Section 80P(2)(d) of the Income Tax Act. 4. From the perusal of the orders passed by the first Appellate Authority in appeals, it is evident that where the petitioner has been able to satisfy the first Appellate Authority that the interest earned by the petitioner is from the deposits made by the petitioner in Co-operative Societies, the interest has been deducted by the first Appellate Authority. However, where the Appellate Authority has not been satisfied regarding the claim of the petitioner, it has been disallowed. 5. Learned Counsel for the petitioner submits that the petitioner has produced all the relevant documents to show W.P.(C) No.31539/2023 that the interest income was from deposits in Co-operative Societies. This is a disputed question of fact, and this Court would not examine the books of account of the petitioner or the documents submitted by the petitioner. This is the case which needs to be examined by the second Appellate Authority, i.e., the Income Tax Appellate Tribunal. Therefore, I do not find this Court to embark on the jurisdiction of appeal to decide the disputed question of fact while exercising the writ jurisdiction. It is for the petitioner to satisfy the Income Tax Appellate Tribunal regarding its claim of deduction under Section 80P(2)(d) of the Income Tax Act by leading cogent and credible evidence in support thereof. 6. Thus, the present writ petition is disposed of with a W.P.(C) No.31539/2023 that the interest income was from deposits in Co-operative Societies. This is a disputed question of fact, and this Court would not examine the books of account of the petitioner or the documents submitted by the petitioner. This is the case which needs to be examined by the second Appellate Authority, i.e., the Income Tax Appellate Tribunal. Therefore, I do not find this Court to embark on the jurisdiction of appeal to decide the disputed question of fact while exercising the writ jurisdiction. It is for the petitioner to satisfy the Income Tax Appellate Tribunal regarding its claim of deduction under Section 80P(2)(d) of the Income Tax Act by leading cogent and credible evidence in support thereof. 6. Thus, the present writ petition is disposed of with a direction to the 4[th] respondent to decide the appeals expeditiously, preferably within a period of three months. However, if it is not possible to decide the appeals within a period of three months, at least the stay applications of the petitioner should be decided within a period of three months, in accordance with the law. For a period of three months, the impugned recovery notices shall not be given effect to. Sd/- DINESH KUMAR SINGH JUDGE jjj APPENDIX OF WP(C) 31539/2023 PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE ORDER U/S 250 FOR AY 2016-17 ISSUED BY THE 3RD RESPONDENT DATED 23.02.2023 ISSUED BY THE 3RD RESPONDENT DATED 23.02.2023 Exhibit P2 A TRUE COPY OF THE APPEAL FOR AY 2016-17 FILED BEFORE THE 4TH RESPONDENT DATED 10.05.2023 BEFORE THE 4TH RESPONDENT DATED 10.05.2023 Exhibit P3 A TRUE COPY OF THE STAY PETITION AY 2016-17 FILED BEFORE THE 4TH RESPONDENT DATED 23.09.2023 BEFORE THE 4TH RESPONDENT DATED 23.09.2023 Exhibit P4 A TRUE COPY OF THE ORDER GIVING EFFECT ISSUED BY THE 1ST RESPONDENT DATED 31.03.2023 BY THE 1ST RESPONDENT DATED 31.03.2023 Exhibit P5 A TRUE COPY OF THE PETITION FOR RECTIFICATION OF MISTAKE APPARENT FROM RECORD FILED BEFORE THE 1ST RESPONDENT DATED 17.06.2023 MISTAKE APPARENT FROM RECORD FILED BEFORE THE 1ST RESPONDENT DATED 17.06.2023 Exhibit P6 A TRUE COPY OF THE ORDER U/S 250 FOR AY 2017-18 ISSUED BY THE 3RD RESPONDENT DATED 23.02.2023 ISSUED BY THE 3RD RESPONDENT DATED 23.02.2023 Exhibit P7 A TRUE COPY OF THE APPEAL FOR AY 2017-18 FILED BEFORE THE 4TH RESPONDENT DATED 12.05.2023 BEFORE THE 4TH RESPONDENT DATED 12.05.2023 Exhibit P8 A TRUE COPY OF THE STAY PETITION AY 2017-18 FILED BEFORE THE 4TH RESPONDENT DATED 22.09.2023 BEFORE THE 4TH RESPONDENT DATED 22.09.2023 Exhibit P9 A TRUE COPY OF THE ORDER U/S 250 FOR AY 2018-19 ISSUED BY THE 3RD RESPONDENT DATED 23.02.2023 ISSUED BY THE 3RD RESPONDENT DATED 23.02.2023 Exhibit P10 A TRUE COPY OF THE APPEAL FOR AY 2018-19 FILED BEFORE THE 4TH RESPONDENT DATED 12.05.2021 BEFORE THE 4TH RESPONDENT DATED 12.05.2021 Exhibit P11 A TRUE COPY OF THE STAY PETITION AY 2018-19 FILED BEFORE THE 4TH RESPONDENT DATED 22.09.2023 BEFORE THE 4TH RESPONDENT DATED 22.09.2023 Exhibit P12 A TRUE COPY OF THE DEMAND LETTER AY 2016-17 W.P.(C) No.31539/2023 Exhibit P13 Exhibit P14 Exhibit P15 Exhibit P16 Exhibit P17 ISSUED BY THE 1ST RESPONDENT DATED 12.09.2023 A TRUE COPY OF THE DEMAND LETTER AY 2017-18 ISSUED BY THE 1ST RESPONDENT DATED 12.09.2023 A TRUE COPY OF THE DEMAND LETTER AY 2018-19 ISSUED BY THE 1ST RESPONDENT DATED 12.09.2023 A TRUE COPY OF THE REPLY LETTER AY 2016-17 SUBMITTED BEFORE THE 1ST RESPONDENT DATED 15.09.2023 A TRUE COPY OF THE REPLY LETTER FOR AY 2017-18 SUBMITTED BEFORE THE 1ST RESPONDENT DATED 15.09.2023 A TRUE COPY OF THE REPLY LETTER FOR AY 2018-19 SUBMITTED BEFORE THE 1ST RESPONDENT DATED 15.09.2023