M/S. Arakulam Farmers Service ... vs Income Tax Officer
2024 Latest Caselaw 29826 Ker

Kerala High Court

M/S. Arakulam Farmers Service ... vs Income Tax Officer on 22 October, 2024

Author: P Gopinath

Bench: P Gopinath

                                                         2024:KER:78358
W.P (C)No.30145/2024           -1-
             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                THE HONOURABLE MR. JUSTICE GOPINATH P.

     TUESDAY, THE 22ND DAY OF OCTOBER 2024 / 30TH ASWINA, 1946

                       WP(C) NO. 30145 OF 2024

PETITIONER/S:

          M/S. ARAKULAM FARMERS SERVICE CO-OPERATIVE BANK LTD.,
          ARAKULAM P.O., THODUPUZHA, IDUKKI, REPRESENTED BY ITS
          SECRETARY, MR. JOSHY V. MATHEW, PIN - 685591


          BY ADVS.
          G.MINI(1748)
          A.KUMAR (SR.)
          P.J.ANILKUMAR
          P.S.SREE PRASAD
          BALASUBRAMANIAM R.



RESPONDENT/S:

    1     INCOME TAX OFFICER,
          WARD 1&TPS, MAHIMA TOWERS,
          TEMPLE ROAD, THODUPUZHA, IDUKKI, PIN - 685584

    2     COMMISSIONER OF INCOME TAX (APPEALS),
          NATIONAL FACELESS APPEAL CENTRE,
          NEW DELHI, PIN - 110001

          SRI. JOSE JOSEPH, SR. SC.
          SRI. CYRIAC TOM, SC.


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
22.10.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                                               2024:KER:78358
W.P (C)No.30145/2024                 -2-
                              JUDGMENT

The petitioner has approached this court being aggrieved by the fact an

appeal filed against Ext.P1 order for the assessment year 2017-18 has been

disposed of without correctly appreciating law laid down by the Supreme

Court in by Mavilayi Service Co-operative Bank Ltd. and others v.

Commissioner of Income Tax and another; 2021 (1) KHC 303 (SC).

It is the case of the petitioner that if the law laid down by the Supreme Court

in the judgment had been correctly applied the petitioner would have been

entitled to relief. The learned counsel for the petitioner also relied on a

judgment of the Division Bench of this court in WA No.753/2021 (to which I

was also a party) to contend that where the binding precedent has not been

considered by the Assessing Authority or the Appellate Authority,

notwithstanding the availability of an alternative remedy, the impugned

orders can be set aside.

2. The learned Senior Standing Counsel appearing for the Income Tax

Department would submit that other issues were also involved in the appeal

and the deduction under Section 80P of the Income Tax Act, 1961 is only one

of the issues considered by the Appellate Authority. He also submits that this

is not a case where binding precedent was ignored by the Appellate Authority

and therefore the Division Bench judgment in WA No.753/2021 is not 2024:KER:78358

applicable to the facts and circumstances of the case. He submits that after

noticing the judgment of the Supreme Court in Mavilayi Service Co-

operative Bank (supra) the Appellate Authority has taken a view regarding

the entitlement of the petitioner to claim deduction under Section 80P. It is

submitted that in such circumstances the petitioner ought to have availed the

alternative remedy against Ext.P2 by filing an appeal before the Appellate

Tribunal. The Standing counsel also pointed out that though Ext.P2 order is

issued in the month of November 2023, this writ petition itself was filed only

in the month of August, 2024.

3. Having heard the learned counsel for the petitioner and learned

Senior Standing counsel, I am of the opinion that there is considerable merit

in the contention taken by the learned Senior Standing counsel that the

petitioner ought to have availed alternative remedies against Ext.P2 order.

While the learned counsel for the petitioner may be right in contending that

non-consideration of a binding precedent may be a ground to set aside the

order of the Assessing Authority or the Appellate Authority, I find that this is

not a case where the Appellate Authority was not conscious of the decision of

the Supreme Court in Mavilayi Service Co-operative Bank (supra).

That apart the issues other than deduction under Section 80P are admittedly

involved in the appeal. Therefore I am not inclined to exercise jurisdiction 2024:KER:78358

under Article 226 of the Constitution of India to set aside Ext.P2 order, taking

note of the fact that that the petitioner has an effective alternative remedy of

appeal before the Income Tax Appellate Tribunal against Ext.P2. Therefore

this writ petition will stand dismissed. However, in the facts and

circumstances of the case, I am inclined to direct that if the petitioner files an

appeal against Ext.P2 within a period of two weeks from the date of receipt of

a certified copy of this judgment, the said appeal shall be treated as one filed

within time and pending disposal of the said appeal, the demands arising out

of Ext.P1 order, to the extent it is confirmed by Ext.P2 order, shall not be

recovered from the petitioner.

Writ petition ordered accordingly.

Sd/-

GOPINATH P. JUDGE

AMG 2024:KER:78358

APPENDIX OF WP(C) 30145/2024

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE ASSESSMENT ORDER DATED 17/12/2019

Exhibit P2 TRUE COPY OF THE ORDER PASSED BY THE APPELLATE AUTHORITY DATE 30/11/2023

Exhibit P3 TRUE COPY OF THE JUDGMENT OF THE HONOURABLE DIVISION BENCH IN WRIT APPEAL NO.753/2021 DATED 28/06/2021