K.R.USHASREE V. ASSISTANT COMMISSIONER OF INCOME TAX

WP(C)/18919/2020

AI Insights

The case involves two writ petitions filed by B. Mohanachandran Nair of Prasanthi Cashew Company and K.R. Ushasree of Sai Export Enterprises against the Assistant Commissioner of Income Tax, Circle - 1, Kollam. Both petitioners sought the implementation of orders passed by the Income Tax Appellate Tribunal (ITAT) which were not adhered to by the Assessing Officer for several years. The petitions highlighted the delay in implementing the ITAT's orders regarding deductions claimed under Section 80HHC of the Income Tax Act, 1961, on profits from export turnover for the assessment years 2002-2003, 2003-2004, and 2004-2005. The court, after hearing the submissions, directed the Assessing Officer to comply with the ITAT's order within a specified timeline and warned of personal financial repercussions for non-compliance.

• Counselvise Citation: [2020] 140 COUNSELVISE.COM (IT) 766734 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 15-10-2020
• Assessment Year: misc
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: CHRISTOPHER ABRAHAM
• Assessee Lawyers: ANIL NAIR; R SREEJITH; TELMA RAJU; SRI S P
• Keywords: Assessment; Deduction; Export Turnover; Income Tax; Tribunal
• Section: 80HHC

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL THURSDAY, THE 15TH DAY OF OCTOBER 2020 / 23RD ASWINA, 1942 WP(C).No.18909 OF 2020(K) PETITIONER: B.MOHANACHANDRAN NAIR AGED 45 YEARS PRASANTHI CASHEW CO. MANGAD P O, KOLLAM - 691015. BY ADVS. SRI.ANIL D. NAIR SRI.R.SREEJITH SMT.TELMA RAJU SMT.SRI HARINI S.P. RESPONDENT: ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE - 1, KOLLAM - 691001. SC - SRI. CHRISTOPHER ABRAHAM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.10.2020, ALONG WITH WP(C).18919/2020(L), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).Nos.18909/2020 & 18919/2020 2 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL THURSDAY, THE 15TH DAY OF OCTOBER 2020 / 23RD ASWINA, 1942 WP(C).No.18919 OF 2020(L) PETITIONER: K.R.USHASREE AGED 45 YEARS SAI EXPORT ENTERPRISES, MANGAD P.O. KOLLAM 691 015. BY ADVS. SRI.ANIL D. NAIR SRI.SREEJITH R.NAIR SMT.TELMA RAJU SMT.SRI HARINI S.P. RESPONDENT: ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE -1, KOLLAM 691 001. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.10.2020, ALONG WITH WP(C).18909/2020(K), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).Nos.18909/2020 & 18919/2020 3 JUDGMENT Dated this the 15th day of October 2020 This order of mine shall dispose of the captioned writ petitions by two different petitioners seeking the implementation of the consequential orders passed by the Income Tax Tribunal. 2. As per the facts in W.P.(C).No.18909/2020 on behalf of Sri.B.Mohanachandran Nair, Prasanthi Cashew Company which is engaged in the business of processing and export of cashew, filed return for the assessment year 2003-2004 claiming deduction of Rs.96,62,109/- under Section 80HHC of the Income Tax Act, 1961, on the profit from export turnover. The Assessing Officer did not grant the deduction as sought but reworked the deduction at Rs.20,88,046/-. Against the aforementioned order, the petitioner therein filed an appeal before the Commissioner of Income Tax (Appeals) which was partially accepted but confirmed the order of the Assessing Officer in respect of two items. The petitioner preferred an appeal before the Income Tax Appellate Tribunal. The Income WP(C).Nos.18909/2020 & 18919/2020 4 Tax Appellate Tribunal vide order dated 06.01.2012 accepted the contention of the petitioner and appeal has been partly allowed whereby the matter has been remanded to the Assessing Officer for making fresh examination of the case and it is still pending. 3. In the other case W.P.(C).NO.18919/2020 by Smt.K.R.Ushasree, Sai Export Enterprises, for the assessment years 2002-2003, 2003-2004 and 2004-2005 claimed deduction which was not accepted by the Assessing Officer but was reworked. In the appeal preferred by the petitioner, the first item was partly accepted and ultimately same order as in the other case was passed, i.e., the Income Tax Appellate Tribunal remanded the matter to the Assessing Officer. 4. Sri.Anil.D.Nair, the learned counsel appearing on behalf of the petitioners in both the writ petitions, submits that almost eight years have passed but the order of the Income Tax Appellate Tribunal has not been adhered to in letter and spirit and the Assessing Officer is still seized of the matter. The Officers cannot sit over the matter for the final period as they WP(C).Nos.18909/2020 & 18919/2020 5 are legitimately expected to pass an order within a reasonable period. 5. This Court had already admitted this writ petition on 15.09.2020. Sri.Christopher Abraham, the learned counsel appearing on behalf the Income Tax Department do not deny the aforementioned facts and pendency of the matter before the Assessing Officer in view of the remand order of the ITAT. Having heard the learned counsel for the parties and appraised the paper book, without expressing any opinion on the merits of the matter, I dispose of the writ petitions by issuing directions to the respondents to decide the assessment proceedings in respect of the assessment years referred to above in letter and spirit in view of the order of the ITAT dated 06.01.2012 within a time line. Since eight years have been consumed, let the above exercise be undertaken after affording an opportunity of hearing to the petitioners within a period of one month from the receipt of the certified copy of this judgment. It is made clear that in case the direction of this Court is not complied with by passing order in accordance with WP(C).Nos.18909/2020 & 18919/2020 6 law, the Assessing Officer shall be burdened with cost of Rs.25,000/- each in both cases, to be personally recovered from his salary. These writ petitions are disposed of. Sd/- AMIT RAWAL JUDGE nak WP(C).Nos.18909/2020 & 18919/2020 7 APPENDIX OF WP(C) 18909/2020 PETITIONER'S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE ORDER OF THE INCOME TAX APPELLATE TRIBUNAL DATED 6.1.2012. EXHIBIT P2 TRUE COPY OF LETTER DATED 22.05.2018 SUBMITTED BY THE PETITIONER TO THE RESPONDENT. EXHIBIT P3 TRUE COPY OF THE LETTER DATED 17.01.2020 SUBMITTED BY THE PETITIONER TO THE RESPONDENT. WP(C).Nos.18909/2020 & 18919/2020 8 APPENDIX OF WP(C) 18919/2020 PETITIONER'S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE ORDER OF THE INCOME TAX APPELLATE TRIBUNAL DATED 27.04.2012. EXHIBIT P2 TRUE COPY OF LETTER DATED 07.03.2018 SUBMITTED BY THE PETITIONER TO THE RESPONDENT. EXHIBIT P3 TRUE COPY OF LETTER DATED 17.1.2020 SUBMITTED BY THE PETITIONER TO THE RESPONDENT. //TRUE COPY// P.A TO JUDGE "