M/S OIL PALM INDIA LIMITED V. UNION OFINDIA,

WP(C)/6194/2013

AI Insights

The case involves M/S Oil Palm India Limited, a state government undertaking, which approached the Kerala High Court due to a demand notice from the Income-Tax department requiring payment of Rs. 77,99,299. The petitioner contended that they were entitled to a refund for excess deposits made in previous years, as per various judicial and administrative orders, which were not being processed by the state authorities. The court considered the ongoing financial strain on the petitioner due to the non-refund of the entitled amount and the procedural delays by the state government in implementing the refund orders.

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 722434 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 13-03-2013
• Assessment Year: misc
• Other Referred Cases: ITA No.407/2010, W.P.(C) No.36862/2004, R.P.No.692/2012 in W.P.C.No.36862/2004
• Laws Referred To: Kerala Agricultural Income Tax Act
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH; SUDHEER KUMAR
• Assessee Lawyers: A K NAMBIAR; M NAMBIAR; P MENON; P THOMAS; K MATHAI; PREETHA NAIR
• Keywords: Assessment Order; Demand notice; Excess deposit; Income Tax; Refund
• Section: 147; 148; 143(3); 153A; 68

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 13TH DAY OF MARCH 2013/22ND PHALGUNA 1934 WP(C).No. 6194 of 2013 (Y) -------------------------------------- PETITIONER: ------------------- M/S OIL PALM INDIA LIMITED, XIV/130, KOTTAYAM SOUTH P.O., KODIMATHA, KOTTAYAM- 686 013, REPRESENTED BY ITS MANAGING DIRECTOR, MR.K.N.RAVINDRAN. BY ADVS.SRI.A.K.JAYASANKAR NAMBIAR, SRI.M.GOPIKRISHNAN NAMBIAR, SRI.P.GOPINATH MENON, SRI.P.BENNY THOMAS, SRI.K.JOHN MATHAI, SMT.PREETHA S.NAIR. RESPONDENTS: ----------------------- 1. UNION OFINDIA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, NORTH BLOCK, NEW DELHI- 110 004. 2. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 3. COMMISSIONER OF INCOME TAX, I.S.PRESS ROAD, ERNAKULAM, KOCHI-682 018. 4. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-1, KOTTAYAM- 686 001. 5. INSPECTING ASSISTANT COMMISSIONER, (SPECIAL), COMMERCIAL TAXES, KOTTAYAM-686 001. R1,R3 & R4 BY SRI.JOSE JOSEPH, S.C, R2 & R5 BY SR. GOVERNMENT PLEADER SRI. SUDHEER KUMAR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Prv. W.P.(C). NO.6194/2013-Y: APPENDIX PETITIONER'S EXHIBITS: EXHIBIT-P1: TRUE COPY OF THE JUDGMENT IN ITA NO.407/2010 AND CONNECTED MATTERS DATED 01.12.2011 ISSUED BY THIS HON'BLE COURT TO THE PETITIONER. EXHIBIT-P2: TRUE COPY OF THE JUDGMENT IN W.P.(C)NO.36862/2004 DATED 03.01.2012 ISSUED BY THIS HON'BLE COURT TO THE PETITIONER. EXHIBIT-P3: TRUE COPY OF THE ASSESSMENT ORDER DATED 06.03.2006 FOR THE YEAR 2003-04 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER. EXHIBIT-P4: TRUE COPY OF THE ASSESSMENT ORDER DATED 11.12.2006 FOR THE YEAR 2004-05 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER. EXHIBIT-P5: TRUE COPY OF THE ORDER DATED 01.12.2005 FOR THE YEAR 2003-04 ISSUED BY THE ASSISTANT COMMISSIONER (KGST)1, COMMERCIAL TAXES, SPECIAL CIRCLE TO THE PETITIONER. EXHIBIT-P6: TRUE COPY OF THE ORDER DATED 16.12.2006 FOR THE YEAR 2004-05 ISSUED BY THE ASSISTANT COMMISSIONER (KGST)1, COMMERCIAL TAXES, SPECIAL CIRCLE TO THE PETITIONER. EXHIBIT-P7: TRUE COPY OF THE ORDER DATED 05.02.2010 ISSUED BY THE AGRICULTURAL INCOME TAX APPELLATE TRIBUNAL FOR THE ASSESSMENT YEAR 2003-04 TO THE PETITIONER. EXHIBIT-P8: TRUE COPY OF THE ORDER DATED 21.12.2009 ISSUED BY THE AGRICULTURAL INCOME TAX APPELLATE TRIBUNAL FOR THE ASSESSMENT YEAR 2004-05 TO THE PETITIONER. EXHIBIT-P9: TRUE COPY OF THE JUDGMENT IN REVIEW PETITION NO.692 OF 2012 IN W.P.C.NO.36862/2004 DATED 20.09.2012 ISSUED BY THIS HON'BLE COURT IN THE CASE OF 4TH RESPONDENT AND OTHERS VS.THE PETITIONER AND OTHERS. EXHIBIT-P10: TRUE COPY OF THE COMMUNICATION BY THE PETITIONER TO THE 5TH RESPONDENT DATED 24.02.2012. EXHIBIT-P11: TRUE COPY OF THE DEMAND NOTICE DATED 30.01.2013 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER FOR THE YEAR 2003-04 AND 2004-05. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE Prv. P.R.RAMACHANDRA MENON, J. - - - - - - - - - - - - - - - - - - - - - W.P.(c) No. 6194 OF 2013 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of March, 2013 JUDGMENT The petitioner Company, who is a State Government undertaking is constrained to approach this Court because of the pressure exerted by the Income-Tax department, by issuing Ext.P11 demand dated 30/1/2013, asking the petitioner to satisfy a sum of Rs. 77,99,299/- ; while the amount which the petitioner is entitled to get back by way of refund, in view of the excess deposit made, pursuant to Exts.P7 and P8 orders, followed by Ext.P9 judgment, is still being retained at the hands of the authorities of the State Government. It is stated that a stalemate is reached quite adversely affecting the very existence of the petitioner and hence the challenge. The prayers raised in the writ petition are as follows : “i) Call for the records leading to Ext.P11 demand notice passed by the fourth respondent and quash the same by the issuance of a writ of certiorari or such other writ, order or direction; ii) to issue a writ of mandamus or such other W.P.(C)No.6194/2013 2 writ, order or direction directing the 5th respondent to dispose of Ext.P10 representation filed by the petitioner by giving effect to Exts.P7, P8 orders and P9 judgment; iii) to issue a writ of mandamus or such other writ, order or direction directing the fourth respondent not to initiate any coercive steps for realization of the amounts demanded in Exts.P11 demand notice until the 5th respondent implements Exts.P7,P8,P9 and P10; iv) to grant such other and incidental reliefs as this Hon'ble Court may deem just and necessary on the facts and circumstances of this case; and v) to allow this writ petition (civil) with costs to the petitioner.” 2. Heard the learned Standing Counsel for the Income-tax Department and also the learned Government Pleader for the State Government. 3. The learned counsel for the petitioner submits that, assessment proceedings in respect of the petitioner under the Kerala Agricultural Income Tax Act have already been finalised in respect of the assessment year 2003-04 and 2004-05, whereby excess payment has been effected by the petitioner. This has been ordered to be refunded as per Ext.P9 verdict in R.P.No.692/2012 in W.P.(C) No.36862/2004 . Inspite of the fact that the said verdict was passed as W.P.(C)No.6194/2013 3 early as on 20/09/2012, the proceedings are still to be finalised by the State Government authorities, as a result of which, the petitioner is put to extreme difficulties. 4. The learned Government Pleader appearing for the State Government authorities submits that, earnest efforts are being pursued to quantify the amount based on Ext.P9, which requires some time. The factum of receipt of Ext.P10 letter submitted by the petitioner on 24.2.2012 is admitted. It is stated that the proceedings will be finalised, arriving at the actual figure as to the excess deposit made by the petitioner, within one month. 5. When the matter was taken up for consideration before this Court on 6.3.2013, the learned Government Pleader was required to get instructions as to why the fifth respondent shall not be directed to effect refund ordered as per Ext.P9 judgment to be made directly to the fourth respondent, to solve the situation; simultaneously ordering to maintain status quo till such time. 6. In view of the submission made by the learned Government Pleader as mentioned already, there will be a direction to the fifth respondent to quantify the amount to be returned to the petitioner, in W.P.(C)No.6194/2013 4 accordance with law, within 'four weeks' and the amount equal to the amount shown in Ext.P11 shall be directly deposited to the Income Tax Department, if the amount due to be paid to the petitioner is equal to or in excess to the said extent. If the due amount, for some or other reason, happens to be less than the amount shown in Ext.P11, then the entire amount shall be deposited to the Income Tax Department against the credit of the petitioner. Once the principal amount as shown in Ext.P11 is satisfied by the petitioner, it is open for the petitioner to file a petition for waiver of interest, as already ordered in Ext.P9 judgment, upon which, the same shall be considered by the authorities of the Income Tax Department, passing appropriate orders in accordance with law. Further proceedings pursuant to Ext.P11 shall be kept in abeyance till such time. The rights and liberties of the parties with regard to the disputed figures, if any, are left open. Writ petition is disposed of. P.R.RAMACHANDRA MENON sv JUDGE W.P.(C)No.6194/2013 5 W.P.(C)No.6194/2013 6 "