MANDARTHI SERVICE CO-OPERATIVE SANGHA LIMITED vs COMMISSIONER OF INCOME TAX (APPEALS)

1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 15TH DAY OF SEPTEMBER 2021

BEFORE

THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV

WRIT PETITION No.16770/2021 (T-IT)

Between:

Mandarthi Service Co-operative Sangha Limited Mandarthi Services CO Mandarthi Car Street, Udupi Taluk, Udupi District - 576 223. Represented by General Manager.

… Petitioner

(By Sri Mahesh R. Uppin, Advocate)

And:

Commissioner of Income Tax (Appeals),

National Faceless Appeal Centre,

Room No.356, C.R. Building,

I.P. Estate,

New Delhi - 110 002.

Income Tax Officer,

Ward-2, Aayakar Bhavan,

Aadi-Udupi Malpe Road,

Udupi - 576 103.

Assessing Officer,

National e-Assessment Centre,

Delhi - 110 002.

... Respondents

(By Sri Jeevan J. Neeralgi, Advocate)

2 This Writ Petition is filed under Articles 226 & 227 of the Constitution of India, praying to quash the Assessment Order dated 05.08.2021 passed in PAN No.AACAM4258R by the 3rd Respondent marked as Annexure-A by issuing a writ in the nature of Certiorari and etc.

This Writ Petition coming on for preliminary hearing this day, the Court made the following:

ORDER

The petitioner, who is a Primary Agricultural Co-operative Society registered under the Karnataka Co-operative Societies Act, 1959 has filed this petition seeking to set aside the Assessment order dated 05.08.2021 passed by the Assessing Officer vide Annexure-'A' and in the alternative, has sought for issuance of writ in the nature of mandamus to direct the first respondent to dispose of the appeal at Annexure-'C' of the petition.

The principal contention of the petitioner is that refusal of deduction by the Assessing Officer in the impugned order is contrary to the law laid down by the Apex Court in the case of Mavilayi Service Co-operative Bank Ltd. and Others v. Commissioner of Income Tax,

3 Calicut and Another reported in 2021 SCC Online SC 16. It is submitted that the judgment of Apex Court in the case of Citizen Cooperative Society Ltd., Through its Managing Director, Hyderabad v. Assistant Commissioner of Income Tax, Circle-9(1), Hyderabad reported in (2017) 397 ITR 1 was clarified by the Apex Court. It is submitted that in light of the above judgment, the impugned order is liable to be set aside.

Learned counsel appearing for the Revenue submits that as an appeal has already been filed and is pending, the question of this Court entertaining the Writ petition at this stage does not arise. Upon instructions, it is submitted that the appeal would be disposed off within a period of not later than four months from this day.

In light of the submission that the appeal itself would be disposed off expeditiously, it would not be appropriate to adjudicate on the contention of petitioner as raised.

4 5. Insofar as the prayer of petitioner that the impugned order needs to be kept in abeyance and the consequent demand notice also needs to be stayed, it would be appropriate to observe that such request can be made before the respondent No.1 - First Appellate Authority and the said respondent while considering grant of stay, subject to deposit, is to keep in mind the position of law including the judgment of Apex Court which the petitioner asserts would enure to its benefit.

Needless to state that while considering the aspect of stay, merits of the matter are to be taken note of and to that end, the assertion of petitioner that the judgment of Apex Court would enure to its benefit is a matter to be taken note of appropriately by the First Appellate Authority. The contentions of parties are kept open.

In light of the submission that the appeal would be disposed off within a period of not later than four

5 months, the First Appellate Authority to ensure that appeal is disposed off within a period of four months.

This petition is accordingly disposed off.

Sd/- JUDGE

VGR

MANDARTHI SERVICE CO-OPERATIVE SANGHA LIMITED vs. COMMISSIONER OF INCOME TAX (APPEALS)