2016 (9) TMI 1080

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....as posted for spoken to and was heard today. Accordingly, this judgment is rendered. 2. Heard the learned counsel for the appellant and the learned standing counsel appearing for the respondents. 3. This writ appeal is filed against the judgment of the learned single judge in WPC No.18723 of 2016. The writ petition having been dismissed, this appeal is filed. 4. Briefly stated the facts of the case are that the appellant, a Government of Kerala undertaking, is an assessee under the Income Tax Act. Ext.P1 is an order of assessment passed against the assessee for the assessment year 2012- 2013 where the total income was determined by adding surcharge on sales tax under the Kerala General Sales Tax Act and turn over tax levied under t....

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....this judgment which is challenged before us. 7. The learned counsel for the appellant contended that having regard to the judgment of this Court in ITA No.68 of 2015 and connected cases, whereby final orders passed by the Tribunal confirming the deletion of surcharge and turn over tax paid by the assessee were upheld, the addition made in Ext.P1 assessment order is patently illegal and, therefore, no adjustment could have been made by the department towards a non-existing liability. He also contended that having regard to the scheme of the provisions of Sections 240 and 245, except after determining the amount under Section 240 as is done by Exts.P10A to P10E, adjustment under Section 245 as per Ext.P2 could have been made. Therefore, ac....

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....ty. All these orders were challenged by the revenue before this Court. This Court confirmed the order passed by the Tribunal in the judgment in ITA No.68 of 2015 and connected cases. As on date, there is no appeal against those judgments. 10. This, therefore, means that the total income of the assessee could not have been determined by adding the surcharge and turn over tax paid by the assessee. If that be so, not only that the assessee was entitled to have the amounts found to be refundable in Exts.P2 and P10 series refunded to it, but also the addition of the surcharge and turn over tax to the total income in Ext.P1 assessment order for the year 2012- 2013 is also illegal. Therefore, despite the fact that an appeal filed against Ext.P1....

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....er Ext.P1, issuing Ext.P2 dated 3.2.2015, in exercise of the department's right under Section 245 of the Income Tax Act, it is stated it was only subsequently that on 6.2.2015, the department issued Ext.P10 series under Section 240 of the Income Tax Act giving effect to the appellate orders for the assessment years 2007-2008 to 2011-2012. This, according to the counsel, is against the provisions of Section 240 and 245 of the Income Tax Act. 4. However, when this argument was raised, the learned standing counsel for the department submitted that as a result of the judgment of this Court in ITA Nos.112 of 2015 and connected cases whereby the appeals filed by the department against the orders of the Tribunal pertaining to the assessment....