Wp(C)/7478/2020 Of Ochanthuruth Service Co-Operative Bank v. The Income Tax Officer

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL WEDNESDAY, THE 11TH DAY OF MARCH 2020 / 21ST PHALGUNA, 1941 WP(C).No.7478 OF 2020(H) PETITIONER: OCHANTHURUTH SERVICE CO-OPERATIVE BANKOCHANTHURUTH, COCHIN, ERNAKULAM-682508, REPRESENTED BY ITS SECRETARY, SRI.A.S.GOPALAKRISHNAN. BY ADVS.SRI.AJI V.DEVSRI.ALAN PRIYADARSHI DEVSRI.SOORAJ K.ABRAHAMSHRI.KIRAN RAMACHANDRAN NAIR RESPONDENTS: 1THE INCOME TAX OFFICERNON CORP WARD 2(5), INCOME TAX OFFICER, L.G.TOWERS, THOPPUMPADY, ERNAKULAM-682005. 2THE COMMISSIONER OF INCOME TAX (APPEALS)-2,KOCHI-682036. 3ASSISTANT DIRECTOR OF INCOME TAX,CENTRALIZED PROCESSING CENTER, BANGALORE-560500. 4THE CENTRAL BOARD OF DIRECT TAXES,DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, GOVERNMENT OF INDIA, NORTH BLOCK, NEW DELHI-110001, REPRESENTED BY ITS CHAIRMAN. OTHER PRESENT: SRI CHRISTOPHER ABRAHAM SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON11.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT Petitioner, the Co-operative Bank situated in Ernakulam District carrying on the primaryAgricultural Credits Society claimed deductions underSection 80P of the Income Tax Act and filing NILreturns for the years 2012-13, 2014-15, 2017-18 &2018-19. However, the 1st respondent passed Exts.P1& P1(a) assessment orders for the years 2012-13 and2017-18 disallowing to grant deduction against thepetitioner who has filed statutory appeals Exts.P2 &P2(a), but in the meantime the 1[st ]respondent, i.e., theassessing officer, vide communication Ext.P4 in termsof the power under Article 220(6) of the Income TaxAct as well as the Circular of 2017 called upon thepetitioner to deposit 20% of the disputed amount as apre-condition for grant of stay. WP(C).No.7478 OF 2020 -3- 2.Learned counsel appearing on behalf of the petitioner submitted that petitioner is underimminent threat of revenue recovery proceedings forthe assessment years 2012-13, 2017-18 & 2018-19.Petitioner has also preferred a rectificationapplication dated 07.02.2020 and the same is stillpending consideration. Reliance in this regard hasbeen laid to the screenshot Ext.P8. He submits thatpredicament of the petitioner is the result of nonconsideration of the stay application by the appellateauthority pertaining to two assessment years i.e.,2012-13 & 2017-18 and non-consideration ofrectification application for the assessment year 2018-19. It is seriously contended that the imminent threatof coercive steps cannot be permitted to be ignored. 3.Learned counsel for the respondentsubmits that the rectification application againstExt.P6 dated 07.02.2020 is not maintainable as it is a communication under Section 143(1)(a) and no suchassessment. Petitioner is willing to appear before theassessing officer and bring on record material ifclaiming exemption under Section 80P. 4.Having heard learned counsel for theparties and appraised the paper books, I am of theview that the petitioner cannot be impasse of non-consideration of the stay applications during thependency of Exts.P2 & P2(a) appeals, which willseriously prejudice the rights of the petitioner on thefact that declining to grant exemption under Section80P was not justified. Accordingly, Withoutexpressing anything on the merits of the matter, Idispose of this writ petition with a direction to the 2[nd]respondent to decide the application for stay alongwith the appeals Exts.P2 & P2(a) within 45 days fromthe date of receipt of a certified copy of the judgmentand take a decision thereon and with a further WP(C).No.7478 OF 2020 -5- direction to the 1[st] respondent to take a decision onthe rectification application Ext.P7 dated 17.02.2020preferred against the communication dated07.02.2020, Ext.P6, as expeditiously as possible. vv Sd/- AMIT RAWAL JUDGE APPENDIX PETITIONER'S/S EXHIBITS: WP(C).No.7478 OF 2020 -5- direction to the 1[st] respondent to take a decision onthe rectification application Ext.P7 dated 17.02.2020preferred against the communication dated07.02.2020, Ext.P6, as expeditiously as possible. vv Sd/- AMIT RAWAL JUDGE APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1TRUE COPY OF THE ASSESSMENT ORDER PASSED BY THE 1ST RESPONDENT FOR THE YEAR 2012-13 DATED 12.03.2015.PASSED BY THE 1ST RESPONDENT FOR THE YEAR 2012-13 DATED 12.03.2015. EXHIBIT P1(A)TRUE COPY OF THE ASSESSMENT ORDER PASSED BY THE 1ST RESPONDENT FOR THE YEAR 2017-18 DATED 30.12.2019.PASSED BY THE 1ST RESPONDENT FOR THE YEAR 2017-18 DATED 30.12.2019. EXHIBIT P2TRUE COPY OF THE STATUTORY APPEAL FILED BY THE PETITIONER AGAINST EXT.P1ORDER DATED 04.03.2015.FILED BY THE PETITIONER AGAINST EXT.P1ORDER DATED 04.03.2015. EXHIBIT P2(A)TRUE COPY OF THE STATUTORY APPEAL FILED BY THE PETITIONER AGAINST EXT.P1(A) ORDER DATED 29.01.2020.FILED BY THE PETITIONER AGAINST EXT.P1(A) ORDER DATED 29.01.2020. EXHIBIT P3TRUE COPY OF THE STAY PETITION FILED ALONG WITH THE EXT.P2 APPEAL DATED 08.10.2019.ALONG WITH THE EXT.P2 APPEAL DATED 08.10.2019. EXHIBIT P3(A)TRUE COPY OF THE STAY PETITION FILED ALONG WITH THE EXT.P2(A) APPEAL DATED 29.01.2020.ALONG WITH THE EXT.P2(A) APPEAL DATED 29.01.2020. EXHIBIT P4A TRUE COPY OF THE INTIMATION FROM THE1ST RESPONDENT DATED 19.02.2020 DIRECTING THE PETITIONER TO REMIT 20% OF THE AMOUNT DEMANDED FOR CONSIDERATION OF EXT.P3 & P.3(A) STAY PETITIONS IN THIS INSTANT CASE.1ST RESPONDENT DATED 19.02.2020 DIRECTING THE PETITIONER TO REMIT 20% OF THE AMOUNT DEMANDED FOR CONSIDERATION OF EXT.P3 & P.3(A) STAY PETITIONS IN THIS INSTANT CASE. EXHIBIT P5A TRUE COPY OF THE NOTICE U/S.221(1) DATED 03.03.2020.DATED 03.03.2020. EXHIBIT P6A TRUE COPY OF THE COMMUNICATION U/S.143(1)(A) DATED 07.02.2020.U/S.143(1)(A) DATED 07.02.2020. EXHIBIT P7A TRUE OF THE ACKNOWLEDGMENT OF RECTIFICATION REQUEST GENERATED ONLINEDATED 17.02.2020.RECTIFICATION REQUEST GENERATED ONLINEDATED 17.02.2020. EXHIBIT P8A TRUE COPY OF THE SCREENSHOT OF THE PORTAL INDICATING THE PENDING STATUS OF THE RECTIFICATION REQUEST AS ON 09.03.2020. //TRUE COPY//PA TO JUDGE