SHRI C.P. ABDUL AZIZE, vs. INCOME TAX OFFICER (INTERNATIONAL TAXATION),

WP(C)/38224/2018HC KeralaKLHC01088719201819 December 2018Author: HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU4 pages

AI SummaryRemanded

What did the High Court hold?

The High Court of Kerala, without delving into the merits of the case, disposed of the writ petition. The Court noted the petitioner's submission that Ext.P5 was a self-operating order and the Revenue's assurance that any refund application would be considered expeditiously. Therefore, the Court directed that if the petitioner applies for a refund in terms of Ext.P5, the concerned authorities are to consider the application promptly. The Court did not decide on the entitlement to the refund itself, but rather on the procedural step of applying for it. No specific amount was determined as refundable by the Court.

What were the facts?

The petitioner, Shri C.P. Abdul Azize, applied for settlement under the Direct Tax Dispute Resolution Scheme 2016. Following the authorities' orders, he remitted the determined tax amount. Subsequently, he submitted an application for a refund, referencing Ext.P1 proceedings. The Commissioner of Income Tax (International Taxation), Bangalore, issued an order (Ext.P5) stating that the amount payable was incorrectly shown as Rs. 12,51,705/- in Form-3, which included a 25% minimum penalty of Rs. 1,85,297/-. The order corrected the payable amount to Rs. 10,66,406/-. The petitioner filed a writ petition seeking a refund based on this corrected amount.

What were the issues?

1. Whether the Ext.P5 order, which corrected the amount payable under the Direct Tax Dispute Resolution Scheme 2016, is self-operating and necessitates a refund of the excess amount paid by the petitioner? Assessee's contention: The petitioner argued that Ext.P5 is a self-operating order, implying it should automatically lead to a refund of the excess tax paid due to the correction in the payable amount. Revenue's contention: The Income Tax Department, through its Standing Counsel, asserted that the petitioner had not yet submitted any formal application demanding a refund. However, the counsel assured the Court that if the petitioner applied, the Department would consider the request expeditiously.

AI-generated summary — verify with the full judgment below

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU WEDNESDAY,THE 19TH DAY OF DECEMBER 2018 / 28TH AGRAHAYANA, 1940 WP(C).No. 38224 of 2018 PETITIONER/S: SHRI C.P. ABDUL AZIZE, AGED 56 YEARS 14/672, PUNKUNNAM P.O., PUZHAKKAL, THRISSUR - 680 002. BY ADVS. SRI.ANIL D. NAIR SRI.ACHYUT K PADMARAJ SRI.R.SREEJITH RESPONDENT/S: 1 INCOME TAX OFFICER (INTERNATIONAL TAXATION), CENTRAL REVENUE BUILDING, I S PRESS ROAD, KOCHI - 682 018. 2 ADDITIONAL COMMISSIONER OF INCOME TAX (INTERNATIONAL TAXATION), CENTRAL REVENUE BUILDING, I S PRESS ROAD, KOCH-682018. 3 COMMISSIONER OF INCOME TAX (INTERNATIONAL TAXATION), BENGALURU-560095. BY ADVS. SRI.JOSE JOSEPH, SC, FOR INCOME TAX SRI.P.K.RAVINDRANATHA MENON (SR.) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No. 38224/2018 -2-

J U D G M E N T The petitioner applied for a settlement under the Direct Tax Dispute Resolution Scheme 2016. Based on the orders passed by the authorities, the petitioner remitted the tax. After the remittance, as per the Ext.P1 proceedings, the petitioner submitted the Ext.P2 application for refund of the tax. Then, the Commissioner of Income Tax (International Taxation), Bangalore, passed the Ext.P5 order, and it reads: “In the certificate in Form-3 dated 22.02.2017, the amount payable was incorrectly shown as Rs.12,51,705/- which is inclusive of 25% of minimum penalty which amounts to Rs.1,85,297/-. Whereas the amount payable may be correctly read as Rs.10,66,406/-.” Seeking refund in terms of the Ext.P5, the petitioner has filed this writ petition.

In response to the submissions made by the petitioner's counsel, the learned Standing Counsel asserts that so far the -3- petitioner has not demanded refund by submitting any application.

In response, the petitioner's counsel submits that the Ext.P5 is a self-operating order.

At any rate, the learned Standing Counsel assures the Court that if the petitioner applies, the Department will consider the petitioner's request expeditiously. Under these circumstances, without adverting to the merits, I dispose of the writ petition: if the petitioner applies for refund in terms of the Ext.P5, the authorities will consider the application expeditiously. DAMA SESHADRI NAIDU JUDGE jjj -4-

Appendix — schedule of exhibits

APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE FORM 3 DATED 22.2.2017. EXHIBIT P2 TRUE COPY OF THE LETTER ISSUED BY AUDITOR DATED 24.3.2017. EXHIBIT P3 TRUE COPY OF THE TAX REMITTANCE CHALLAN DATED 15.3.2017. EXHIBIT P4 TRUE COPY OF THE LETTER DATED 14.5.2018 REQUESTING DETAILS OF MODIFIED FORM 3. EXHIBIT P5 TRUE COPY OF FULL AND FINAL ORDER AND CORRIGENDUM.

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