Kerala State Co-Op. Agricultural ... vs Union Of India
2022 Latest Caselaw 10843 Ker

                     IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                      PRESENT
                     THE HONOURABLE MR. JUSTICE GOPINATH P.
         FRIDAY, THE 28TH DAY OF OCTOBER 2022 / 6TH KARTHIKA, 1944
                             WP(C) NO. 13191 OF 2022
PETITIONER:

     1        KERALA STATE CO-OP. AGRICULTURAL AND RURAL DEVELOPMENT BANK
              LTD
              POST BOX NO. 56, STATUE JN.,
              THIRUVANANTHAPURAM
              REPRESENTED BY ITS MANAGING DIRECTOR
              MR. BINOY KUMAR. M, PIN - 695001
              BY ADVS.
              JAZIL DEV FERDINANTO
              JOSE JACOB

RESPONDENTS:

     1        UNION OF INDIA
              REPRESENTED BY SECRETARY,
              MINISTRY OF FINANCE,
              DEPARTMENT OF REVENUE,
              NORTH BLOCK,
              NEW DELHI, PIN - 110001
     2        ADDITIONAL/JOINT/DEPUTY/ASSISTANT COMMISSIONER OF INCOME
              TAX/INCOME-TAX OFFICER
              NATIONAL FACELESS ASSESSMENT CENTRE
              DELHI, PIN - 110001
              BY ADV CHRISTOPHER ABRAHAM, INCOME TAX DEPARTMENT

     THIS     WRIT    PETITION   (CIVIL)   HAVING   COME   UP   FOR   ADMISSION   ON
28.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WPC No.13191 of 2022
                                  2




                          JUDGMENT

Dated this the 28th day of October, 2022

The petitioner has approached this Court being

aggrieved by Ext.P3 order of assessment issued under

the provisions of the Income Tax Act, 1961 in respect

of assessment year 2015-2016. It is the case of the

petitioner that since the Assessment Officer does not

taken into consideration the judgment of the Hon'ble

Supreme Court in Mavilayi Service Co-operative

Bank Ltd. v. Commissioner of Income Tax, the

assessment order is bad in law and it is liable to be

set aside. It is the case of the petitioner that if the

law laid down by the Hon'ble Supreme Court in the

aforesaid judgment is applied, the entire liability or a

substantial portion thereof will be wiped out.

2. The learned Standing Counsel appearing for

the respondent Department states that apart from the

issues considered by the Hon'ble Supreme Court in WPC No.13191 of 2022

Mavilayi Service Co-operative Bank Ltd. (supra),

the petitioner has been assessed to income tax on

various other grounds and at least in respect of such

grounds, the petitioner has to file a duly constituted

appeal against the order of assessment. It is

submitted that no grounds are made out for

interference with Ext.P3 order of assessment in

proceedings under Article 226 of Constitution of India.

3. Having heard the learned counsel for the

petitioner and the learned Standing Counsel

appearing for the respondent Department, I am of the

view that since it is the admitted case that the

judgment of the Hon'ble Supreme Court in Mavilayi

Service Co-operative Bank Ltd. (Supra), has not

been considered while completing the assessment of

the petitioner by Ext.P3 order, the said order can be

set aside and the matter can be remanded to the 2 nd

respondent for completing the assessment afresh

after affording to the petitioner an opportunity of WPC No.13191 of 2022

being heard.

4. Since it is pointed out by the learned

counsel appearing for the respondent Department

that Income Tax has been assessed on grounds under

heads which have no relation to the law declared in

Mavilayi Service Co-operative Bank Ltd.

(Supra), it is made clear that the Assessing Officer

need not reconsider any issue other than the issue

arising out of the judgment of Hon'ble Supreme Court

in Mavilayi Service Co-operative Bank Ltd.

(Supra) while passing fresh order of assessment.

However, in order to avoid furhter confusion, it is

directed that while reconsidering the issue as directed

above, the Assessing Officer shall also pass fresh

orders in respect of all other issues so that the

petitioner may, if aggrieved by the order, file a

statutory appeal against the order in its entirety.

Therefore, Ext.P3 is quashed. The matter is remanded

for fresh consideration of the 2nd respondent, who WPC No.13191 of 2022

shall decide the matter afresh after affording to the

petitioner an opportunity of being heard and taking

note of the directions contained in this judgment.

The writ petition is disposed of as above.

Sd/-

GOPINATH P.

JUDGE SKP/28-10 WPC No.13191 of 2022

APPENDIX OF WP(C) 13191/2022

PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE SHOW CAUSE NOTICE RECEIVED FOR PROPOSED DRAFT ASSESSMENT ORDER - NO. ITBA/AST/F/147(SCN)/2021-22/1040950284(1) DATED

EXHIBITP2 TRUE COPY OF THE RESPONSE FILED TO SHOW CAUSE NOTICE RECEIVED FOR PROPOSED DRAFT ASSESSMENT ORDER - NO. 395783091210322 DATED 21.03.2022 EXHIBITP3 TRUE COPY OF THE ASSESSMENT ORDER NO.

ITBA/AST/S/147/202122/1042174137(1) DATED

EXHIBITP4 TRUE COPY OF DEMAND NOTICE NO.

ITBA/AST/S/156/2021-22/1042174321(1) DATED

EXHIBITP5 TRUE COPY OF THE NOTICE RECEIVED FOR INITIATION OF PENALTY PROCEEDINGS UNDER SECTION 274 READ WITH SECTION 270A OF THE INCOME TAX ACT - NO. ITBA/PNL/S/270A/2021-22/1042174538(1) DATED

EXHIBITP6 TRUE COPY OF THE INFORMATION RECEIVED ON ACCOUNT OF RTI APPLICATIONS MADE TO RBI DATED 06.08.2019 EXHIBITP7 TRUE COPY OF THE INFORMATION RECEIVED ON ACCOUNT OF RTI APPLICATIONS MADE TO REGISTRAR OF CO-OP. SOCIETIES DATED 12.04.2016 EXHIBITP8 TRUE COPY OF THE INFORMATION RECEIVED ON ACCOUNT OF RTI APPLICATIONS MADE TO NBARD DATED 17.03.2016 EXHIBITP9 TRUE COPY OF THE ORDER PASSED BY KERALA HIGH COURT IN KERALA STATE CO-OP. AGRICULTURAL & RURAL DEVELOPMENT BANK LTD VS. COMMISSIONER OF INCOME TAX (ITA NOS. 2,6,30 & 31/2017) DATED 24.09.2021 RESPONDENTS' EXHIBITS:NIL

TRUE COPY

P.A.TO JUDGE