THE BHARAT CO -OPERATIVE BANK LTD vs THE COMMISSIONER OF INCOME TAX

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF APRIL, 2018 BEFORE: THE HON’BLE MRS. JUSTICE S.SUJATHA WRIT PETITION No.8203/2017 (T – IT) BETWEEN: THE BHARAT CO -OPERATIVE BANK LTD No.30, 15TH CROSS, 3RD BLOCK JAYANAGAR, BANGALORE- 560011 REP. BY ITS SECRETARY & AUTHORIZED SINGATORY Mr. SRINIVAS NAGESH AGED ABOUT 42 YEARS S/O P.R.NAGESH.

... PETITIONER

[BY SRI E.SHIVAPRASAD, ADV.]

AND: 1. THE COMMISSIONER OF INCOME TAX RANGE No.7, 5TH FLOOR, BMTC BUILDING KORAMANGALA, BANGALORE – 560095.

THE ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE - 7 (2) (1), 3RD FLOOR, BMTC BUILDING, KORAMANGALA BANGALORE – 560095.

THE ASSISTANT DIRECTOR OF INCOME TAX EXEMPTION CIRCLE, 17/2, 3RD FLOOR, INCOME TAX BUILDING, INFANTRY ROAD BANGALORE – 560001.

THE DEPUTY COMMISSIONER OF INCOME TAX CIRCLE 4 (1),

- 2 - 5TH FLOOR, UNITY BUILDING ANNEX, MISSION ROAD BANGALORE – 560017.

…RESPONDENTS

[BY SRI K.V.ARAVIND, ADV.)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT THE R-1 TO 4 AUTHORITIES FOR PROCESSING THE TAX RETURNS FILED BY THE PETITIONER IN FORM NO.ITR-7 DTD.30.9.2009 VIDE ANNEX-A AND SUBSEQUENTLY FILED IN FORM NO.ITR-5 VIDE ANNEX-B DTD.19.8.2011 FOR THE ASSESSMENT YEAR 2009-10 AND TO REFUND THE AMOUNT OF Rs.10,84,473/- AS CLAIMED IN THE RETURNS ALONG WITH INTEREST TO THE PETITIONER WITH IMMEDIATE EFFECT AND ETC.

THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:-

O R D E R

The petitioner is aggrieved by the inaction of the respondent authorities in not processing the tax returns filed by the petitioner in Form No.ITR-7 dated 30.09.2009 vide Annexure-A and subsequently filed in Form No.ITR-5 vide Annexure-B dated 19.08.2011 relating to the assessment year 2009-10 and to refund the amount of Rs.10,84,473/- as claimed in the returns

- 3 - along with interest to the petitioner, interalia seeking for a direction to the respondents to consider the representations at Annexures-C, D & E submitted by the petitioner for acceptance of the returns filed for the assessment year 2009-10 in accordance with law.

The petitioner, Co-operative Bank is an income tax assessee and has filed its income tax return for the assessment year 2009-10 well within the time on 30.09.2009 inadvertently in Form No.ITR-7 and has claimed for refund of Rs.10,84,473/- being advance excess tax amount paid by the petitioner. It is contended that on noticing the same, again fresh return was filed in the required format ITR-5 relating to the said assessment order on 19.08.2011 in electronic form and manually on 02.09.2011. It is the grievance of the petitioner that the income tax return filed by the petitioner was neither processed nor the claim for refund of the excess advance tax paid has been

- 4 - adjudicated upon, despite several request letters/representations submitted by the petitioner before the respondent authorities. It is contended that without there being any justifiable reasons or grounds, respondent authorities have failed to process the income tax return submitted.

Learned counsel Sri.E.Shivaprasad, appearing for the petitioner, reiterating the grounds urged in the writ petition, placing reliance on the judgment of this Court in the case of A.BALAKRISHNAN V/S. GENERAL MANAGER, HINDUSTAN MACHINE TOOLS LTD., AND THE COMMISSIONER, INCOME TAX, reported in LAWS(KAR) 2007 2 57 and the judgment of Bombay High Court in the case of CRAWFORD BAYLEY AND CO., V/S. UNION OF INDIA, reported in LAWS(BOM) 2011 12 125, would contend that the respondent would have intimated the assessee/petitioner if the

- 5 - returns of the income furnished by the assessee is defective. It is further contended that no application under Section 119 (2) (b) of the Act is required to be filed for condoning the delay in filing the returns in the circumstances of the case.

Learned counsel Sri.K.V.Aravind, appearing for the Revenue would contend that the grievance status as on 12.12.2016 at Annexure-J to the writ petition would reveal that the assessee/petitioner has failed to substantiate fresh returns filed in ITR-5 electronically on 19.08.2011 and manually on 02.09.2011. ITR-5 enclosed with the grievance petition does not bear the signature and office seal of the concerned for having received the same. The assessee/petitioner is claiming refund without furnishing the valid return in time. Reliance is also placed on Section 139(5) of the Act.

In view of the aforesaid submissions made by the learned counsel for the parties, it is apparent

- 6 - that there is serious dispute relating to the filing of the Form No.ITR-5 before the Authorities. However, it is not in dispute that the original return in ITR-7 was filed well in time on 30.09.2009. It was obligatory on the part of the respondent authorities to intimate the petitioner/assessee if the same was defective, more particularly, when repeated requests/representations were made by the petitioner/assessee to consider the return filed.

In the circumstances, without expressing any opinion on the merits or demerits of the case, this Court deems it appropriate to direct the respondent authorities to consider the representations dated 19.08.2011, 02.09.2011, 08.06.2012 and 13.09.2012 at Annexures-B, C, D and E respectively, relating to the assessment year 2009-10 and pass appropriate orders in accordance with law, after hearing the petitioner as expeditiously as possible in any event not later than

- 7 - four weeks from the date of receipt of the certified copy of the order.

With the aforesaid observations, the petition stands disposed of.

Sd/- JUDGE

NC.

THE BHARAT CO -OPERATIVE BANK LTD vs. THE COMMISSIONER OF INCOME TAX