Archana Bar and Dwaraka Tourist Home V. The Commissioner of Income Tax (Central), Cochin and The Deputy Commissioner of Income Tax (Central Circle), Calicut

WP(C)/22457/2003

AI Insights

The case involves Archana Bar and Dwaraka Tourist Home, represented by Mr. John Kallat, challenging an order by the Commissioner of Income Tax, which disposed of their revision petition against a block assessment for the years 1991-92 to 2001-02. The petitioner contested the inclusion of income assessed in the regular assessment for the year 1999-2000 in the block assessment, arguing that substantial tax was paid in advance before the date of search. The Commissioner rejected this claim, noting the regular return was filed post-tax payment and after the date of search. The court found that the petitioner could not exclude income from the block assessment based on a return filed after the search date and suggested rectification under Section 154 of the Income Tax Act.

• Counselvise Citation: [2008] 140 COUNSELVISE.COM (IT) 670983 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 24-07-2008
• Assessment Year: misc
• Laws Referred To: Income Tax Act
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: GEORGE GEORGE
• Assessee Lawyers: T M SREEDHARAN; TONY CHACKO
• Keywords: Block assessment; Income Tax; Rectification Application; Undisclosed income
• Section: 154; 158BC; 143(1)(a)

Judgement Text

" IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR THURSDAY, THE 24TH JULY 2008 / 2ND SRAVANA 1930 WP(C).No. 22457 of 2003(W) -------------------------- PETITIONER: ------------ ARCHANA BAR AND DWARAKA TOURIST HOME MAIN ROAD, PAYYANNUR, KANNUR DISTRICT REPRESENTED BY PARTNER, MR. JOHN KALLAT. BY ADV. SRI.T.M.SREEDHARAN SRI.TONY CHACKO RESPONDENTS: ------------- 1. THE COMMISSIONER OF INCOME TAX (CENTRAL) COCHIN, KANDAMULATHIL TOWERS, M.G. ROAD, COCHIN-682 011. 2. THE DEPUTY COMMISSIONER OF INCOME TAX (CENTRAL CIRCLE) AYAKAR BHAVAN, NORTH BLOCK, MANANCHIRA, CALICUT-1. BY SHRI.GEORGE K GEORGE, SC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.22457/2003 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF ASSESSMENT ORDER FOR THE BLOCK PERIOD DATED 23/05/2002 ISSUED BY R2. P2 : COPY OF ORDER OF COMMISSIONER OF INCOME TAX VIDE NO.Cr.38(II)/ TECH/CIT(C)-CHN/02-03 DATED 05/09/2002. P3 : COPY OF INTIMATION RECEIVED UNDER SEC.143(1)(a) DATED 29/03/2001 FROM RESPONDENT ACCEPTING THE RETURNS SUBMITTED BY PETITIONER. P4 : COPY F REUTRN OF INCOME FOR ASSESSMENT YEAR 1999-2000 SUBMITTED BY PETITIONER BEFORE THE RESPONDENT. //TRUE COPY// PA TO JUDGE. jg C.N.RAMACHANDRAN NAIR, J. ---------------------- WP(C) No. 22457 of 2003 ------------------------------------ Dated, this the 24th day of July, 2008 J U D G M E N T Petitioner is challenging Ext.P2 order whereunder the Commissioner has disposed the revision petition filed by the petitioner against the block assessment completed after search for the assessment years 1991-92 to 2001-02. 2. I heard learned counsel appearing for petitioner and learned Standing Counsel appearing for the Income Tax Department. 3. The only ground raised before me is against the rejection of petitioner’s contention that the returned income for the assessment year 1999-2000 was assessed in regular assessment and the same income was subjected to tax in the block assessment as well. However, petitioner’s claim was rejected by the Commissioner holding that the regular return was filed after paying tax after the date of search. This is not disputed by petitioner even though petitioner has a case that substantial amount of tax was paid in advance i.e. prior to the date of search. In any case, petitioner cannot ask for exclusion of income from block assessment based on return filed after date of search because proceedings for assessment under Section 158BC is inclusive of undisclosed income WP(C) No.22457/2003 -2- up to the date of search. Therefore, if there is duplication of assessment of same figure, one in block assessment and other in the regular assessment, it is up to petitioner to approach the Assessing Officer with a rectification application for rectifying the regular assessment in terms of Section 154 of the Income Tax Act for the assessment year 1999-2000. Since the writ petition is pending for long, petitioner is granted six weeks' time from today to file rectification application for rectification of regular assessment completed in the form of intimation issued under Section 143(1)(a) for the assessment year 1999-2000. If any application is filed within the time granted as above, the Assessing Officer should consider the block period assessment and exclude such of the income assessed in the block assessment from regular assessment and rectify the proceedings issued under Section 143(1)(a) of the Act treating the rectification application filed under Section 154 of the Income Tax Act as one filed in time. However, if Assessing Officer has suo motu corrected the assessment order there is no need for issuing any further proceedings. The writ petition is disposed of as above. (C.N.RAMACHANDRAN NAIR, JUDGE.) jg "