Wp(C)/601/2020 Of Manambur Service Co-Operative Bank Unlimited v. Income Tax Officer

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS WEDNESDAY, THE 22ND DAY OF JANUARY 2020 / 2ND MAGHA, 1941WP(C).No.601 OF 2020(A) PETITIONER: MANAMBUR SERVICE CO-OPERATIVE BANK LIMITED,NO.2825, REPRESENTED BY ITS SECRETARY SHRI R. SAILENDRAKUMAR, AGED 55 YEARS, MANAMBUR P. O., THIRUVANANTHAPURAM DISTRICT, KERALA, PIN - 695 605.BY ADV. SRI.C.A.JOJO RESPONDENTS: 1INCOME TAX OFFICERWARD - 2(5) KOWDIAR, TRIVANDRUM - 695 003.2THE INCOME TAX OFFICERWARD - 2(3) KOWDIAR, TRIVANDRUM - 695 003.3THE COMMISSIONER OF INCOME TAX (APPEALS) - 1OFFICE OF THE COMMISSIONER OF INCOME TAX (APPEALS),TRIVANDRUM - 695 003. SRI.CHRISTOPHER ABRAHAM, STANDING COUNSEL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON22.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ALEXANDER THOMAS, J. ------------------------------------- W.P.(C) No. 601 of 2020-------------------------------------Dated this the 22[nd] day of January, 2020 J U D G M E N T The facts projected in this Writ Petition (Civil) are asfollows: The petitioner is a primary co-operative society who filedreturn of income for the assessment year 2015-16 declaring totalincome at Nil after claiming eligible deduction u/s 80P of theIncome Tax Act, 1961. The assessing officer completed theassessment u/s 143(3) by Ext.P-1 order dated 29-11-2017disallowing eligible deduction u/s 80(P)(2)(a)(i) of the IncomeTax Act, 1961 and computed total income as Rs.41,28,889/- asagainst the declared income of Nil. Ext.P-2 demand notice u/s156 for Rs.17,43,640/- also been issued. The assessment was doneagainst the judgment of this Court in ITA.No.212/2013 dated15.2.2016. The petitioner filed Ext.P3 statutory appeal before the3[rd] respondent challenging Ext.P-1 assessment order. By Ext.P-4order the 3[rd] respondent allowed the appeal by granting deductionu/s 80(P)(2)(d)(a)(i) of the Income Tax Act, 1961, by deleting the tax amount assessed by the 1[st] respondent. After one year ofExt.P-4 order, the 3[rd] respondent suo motu initiated rectificationproceedings u/s 154 of the said Act stating that there is apparentmistake. The petitioner filed objection and also enlightened the 3[rd]respondent the clarification Circular No.133/6 dated 9.5.2017issued by the Central Board of Direct Taxes that a co-operativesociety, irrespective of its classification or nomenclature, is eligiblefor deduction u/s80P. But without considering any of theobjections raised by the petitioner, the 3[rd] respondent unilaterallyallowed the rectification petition as per Ext.P-6. Consequent tothat, the 1[st] respondent issued Ext.P-7 order giving effect to theorder of the 3[rd] respondent. Aggrieved by Ext.P-6 order, thepetitioner filed Ext.P-8 petition for rectification of mistake u/s 154of the Income Tax Act, 1961, which is pending before the 3[rd]respondent. Meanwhile, coercive steps are initiated to recover thedisputed tax amount from the petitioner. The similar issuesoccurred for assessment years 2013-14 and 2008-09. The Exts.P-8,P-15 and P-21 statutory rectification petitions are pending before W.P.(C) No. 601 of 2020 ..4.. the 3[rd] respondent. But the 1[st] respondent initiated coercive stepsby by Exts.P-22, P-23 and P-24 letters of demand to recover thedisputed tax amount. It is in the light of these averments andcontentions that the petitioner has filed the instant Writ Petition(Civil) with the following prayers: “ i.To issue a writ of certiorari quashing Ext.P6, P13 and P19 rectification orders and P22, P23 and P24 letters of demand issued by the respondents.rectification orders and P22, P23 and P24 letters of demand issued by the respondents. W.P.(C) No. 601 of 2020 ..4.. the 3[rd] respondent. But the 1[st] respondent initiated coercive stepsby by Exts.P-22, P-23 and P-24 letters of demand to recover thedisputed tax amount. It is in the light of these averments andcontentions that the petitioner has filed the instant Writ Petition(Civil) with the following prayers: “ i.To issue a writ of certiorari quashing Ext.P6, P13 and P19 rectification orders and P22, P23 and P24 letters of demand issued by the respondents.rectification orders and P22, P23 and P24 letters of demand issued by the respondents. ii.To issue a writ, order or direction to the 1[st] respondent to keep in abeyance all the recovery proceedings pursuant to Ext.P22, P23 and P24 letters of demand till the final disposal of the appeals before the 3[rd] respondent.abeyance all the recovery proceedings pursuant to Ext.P22, P23 and P24 letters of demand till the final disposal of the appeals before the 3[rd] respondent. iii.To issue a writ of mandamus or other appropriate writ, order ordirection to the 2[nd] respondent to consider the Exts.P8, P15 and P21 rectification petitions on merit and also restrain the respondents from initiating coercive proceedings against the petitioner society till the final orders are passed in Exts.P8, P15 and P21 by the 3[rd] respondent.direction to the 2[nd] respondent to consider the Exts.P8, P15 and P21 rectification petitions on merit and also restrain the respondents from initiating coercive proceedings against the petitioner society till the final orders are passed in Exts.P8, P15 and P21 by the 3[rd] respondent. iv.To grant such other reliefs which this Hon'ble Court may deem fit and proper in the circumstances of the case.”fit and proper in the circumstances of the case.” 2.Heard Sri.C.A.Jojo, learned counsel appearing for thepetitioner and Sri.Christopher Abraham, learned Standing Counselfor the Income Tax Department appearing for the respondents. 3.Taking note of the facts and circumstances of the case,it is ordered that the rectification applications as per Exts.P-8,P-15 & P-21 will be taken up for consideration by R-3 without W.P.(C) No. 601 of 2020 much delay, and affording reasonable opportunity of being heard to the petitioner through authorised representative/counsel,if any, may pass orders thereon without much delay preferablywithin a period of 4 to 6 weeks from the date of production ofa certified copy of this judgment. Until orders are passed onExts.P-8, P-15 & P-21 as aforestated, further coercive steps forenforcement of the impugned orders shall be kept in abeyance bythe respondents concerned. With these observations and directions, the above WritPetition (Civil) stands finally disposed of. Sd/- ALEXANDER THOMAS,JUDGE MMG ..6.. APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1A TRUE COPY OF THE ASSESSMENT ORDER DATED29.11.2017 ISSUED BY THE FIRST RESPONDENT.29.11.2017 ISSUED BY THE FIRST RESPONDENT. EXHIBIT P2A TRUE COPY OF THE DEMAND NOTICE DATED29.11.2017 ISSUED BY THE FIRST RESPONDENT.29.11.2017 ISSUED BY THE FIRST RESPONDENT.EXHIBIT P3A TRUE COPY OF THE E-FILED APPEAL FOR AY 2015-16DATED 12.12.2017 FILED BEFORE THE 3RDRESPONDENT.DATED 12.12.2017 FILED BEFORE THE 3RDRESPONDENT. EXHIBIT P4A TRUE COPY OF THE APPELLATE ORDER ISSUED BY THE3RD RESPONDENT DATED 10.7.2018.3RD RESPONDENT DATED 10.7.2018.EXHIBIT P5A TRUE COPY OF THE ORDER U/S 154 ISSUED BY THE3RD RESPONDENT DATED 15.10.2019.3RD RESPONDENT DATED 15.10.2019.EXHIBIT P6A TRUE COPY OF THE ORDER U/S 154 ISSUED BY THE3RD RESPONDENT DATED 15.10.2019.3RD RESPONDENT DATED 15.10.2019.EXHIBIT P7A TRUE COPY OF THE ORDER GIVING EFFECT ISSUED BYTHE 1ST RESPONDENT DATED 15.11.2019.THE 1ST RESPONDENT DATED 15.11.2019.EXHIBIT P8A TRUE COPY OF THE PETITION FOR RECTIFICATION OFMISTAKE BEFORE THE 3RD RESPONDENT DATED10.12.2019.MISTAKE BEFORE THE 3RD RESPONDENT DATED10.12.2019. EXHIBIT P4A TRUE COPY OF THE APPELLATE ORDER ISSUED BY THE3RD RESPONDENT DATED 10.7.2018.3RD RESPONDENT DATED 10.7.2018.EXHIBIT P5A TRUE COPY OF THE ORDER U/S 154 ISSUED BY THE3RD RESPONDENT DATED 15.10.2019.3RD RESPONDENT DATED 15.10.2019.EXHIBIT P6A TRUE COPY OF THE ORDER U/S 154 ISSUED BY THE3RD RESPONDENT DATED 15.10.2019.3RD RESPONDENT DATED 15.10.2019.EXHIBIT P7A TRUE COPY OF THE ORDER GIVING EFFECT ISSUED BYTHE 1ST RESPONDENT DATED 15.11.2019.THE 1ST RESPONDENT DATED 15.11.2019.EXHIBIT P8A TRUE COPY OF THE PETITION FOR RECTIFICATION OFMISTAKE BEFORE THE 3RD RESPONDENT DATED10.12.2019.MISTAKE BEFORE THE 3RD RESPONDENT DATED10.12.2019. EXHIBIT P9A TRUE COPY OF THE ASSESSMENT ORDER DATED31.08.2015 ISSUED BY THE FIRST RESPONDENT.31.08.2015 ISSUED BY THE FIRST RESPONDENT.EXHIBIT P10A TRUE COPY OF THE DEMAND NOTICE DATED31.08.2015 ISSUED BY THE FIRST RESPONDENT.31.08.2015 ISSUED BY THE FIRST RESPONDENT.EXHIBIT P11A TRUE COPY OF THE APPELLATE ORDER ISSUED BY THE3RD RESPONDENT DATED 9.6.2016.3RD RESPONDENT DATED 9.6.2016.EXHIBIT P12A TRUE COPY OF THE OBJECTION BEFORE THE 3RDRESPONDENT DATED 9.10.2019.RESPONDENT DATED 9.10.2019.EXHIBIT P13A TRUE COPY OF THE ORDER U/S 154 ISSUED BY THE3RD RESPONDENT DATED 15.10.2019.3RD RESPONDENT DATED 15.10.2019. ..7.. EXHIBIT P14A TRUE COPY OF THE ORDER ISSUED BY THE 1STRESPONDENT DATED 20.11.2019.RESPONDENT DATED 20.11.2019. EXHIBIT P15A TRUE COPY OF THE PETITION FOR RECTIFICATION OFMISTAKE BEFORE THE 3RD RESPONDENT DATED10.12.2019.MISTAKE BEFORE THE 3RD RESPONDENT DATED10.12.2019. EXHIBIT P16A TRUE COPY OF THE ASSESSMENT ORDER DATED22.3.2014 ISSUED BY THE 2ND RESPONDENT.22.3.2014 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P17A TRUE COPY OF THE DEMAND NOTICE DATED 22.3.2014ISSUED BY THE 2ND RESPONDENT.ISSUED BY THE 2ND RESPONDENT. EXHIBIT P18A TRUE COPY OF THE OBJECTION BEFORE THE 3RDRESPONDENT DATED 12.10.2019.RESPONDENT DATED 12.10.2019. EXHIBIT P19A TRUE COPY OF THE ORDER U/S 154 ISSUED BY THE3RD RESPONDENT DATED 15.10.2019.3RD RESPONDENT DATED 15.10.2019. EXHIBIT P20A TRUE COPY OF THE ORDER ISSUED BY THE 1STRESPONDENT DATED 19.11.2019.RESPONDENT DATED 19.11.2019. EXHIBIT P21A TRUE COPY OF THE PETITION FOR RECTIFICATION OFMISTAKE BEFORE THE 3RD RESPONDENT DATED10.12.2019.MISTAKE BEFORE THE 3RD RESPONDENT DATED10.12.2019. EXHIBIT P22A TRUE COPY OF THE LETTER OF DEMAND AY 2015-16DATED 2.1.2020 ISSUED BY THE 1ST RESPONDENT.DATED 2.1.2020 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P23A TRUE COPY OF THE LETTER OF DEMAND AY 2013-14DATED 2.1.2020 ISSUED BY THE 1ST RESPONDENT.DATED 2.1.2020 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P24A TRUE COPY OF THE LETTER OF DEMAND AY 2008-09DATED 2.1.2020 ISSUED BY THE 1ST RESPONDENT.DATED 2.1.2020 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P25A TRUE COPY OF THE JUDGMENT OF THIS HON'BLECOURT IN WP(C) NO.33382/2019 DATED 6.12.2019.COURT IN WP(C) NO.33382/2019 DATED 6.12.2019.