IN HIGH COURT OF KERALA AT ERNAKULAM PRESENT HONOURABLE MR. JUSTICE AMIT RAWAL THURSDAY, 04TH DAY OF JUNE 2020 / 14TH JYAISHTA, 1942 WP(C).No.10972 OF 2020(V) PETITIONER/S: PAIVA MANUFACTURING CO. (AAKFP7972J), 43/591-M(1), CHITTOOR ROAD, CEMETRY JUNCTION, COCHIN - 682 018, REPRESENTED BY ITS MANAGING PARTNER SHRI TONY PAIVA. BY ADV. SMT.NISHA JOHN RESPONDENT/S: 1 INCOME TAX OFFICER NON-CORP. WARD - 1(4), K. R. BUILDINGS, I.S.PRESS ROAD, COCHIN - 682018. 2 ASSISTANT COMMISSIONER OF INCOME TAX CENTRALISED PROCESSING CENTRE, P. B. NO.2, ELECTRONIC CITY POST OFFICE, BANGALORE - 561 100. 3 COMMISSIONER OF INCOME TAX (APPEALS) -III 28/243, POORNIMA BUILDING, NEAR MANORAMA JUNCTION, PANAMPILLY NAGAR, KOCHI - 682 036. OTHER PRESENT: SRI JOSE JOSEPH SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.06.2020, COURT ON SAME DAY DELIVERED FOLLOWING: WP(C).No.10972 OF 2020(V) 2 JUDGMENT Dated this 4th day of June 2020 petitioner, manufacturing company, carrying on business of partnership firm in year 2008 has approached this court for quashing of ex-parte assessment orders Exts.P2 and P4 for assessment years 2012-13 and 2013-14. skeleton facts of case are that petitioner filed income tax return for year 2012-13 as Nil. They were uploaded income tax file through electronic system, which is evidenced from Ext.P1. Return was processed under Section 143(1) of Income Tax Act. Accordingly, order was issued by department ie., Central Processing Centre, (CPC of Income Tax Department at Bangalore) on 9th May 2013. Upon receipt of order, it was noticed that brought forward losses to extent of Rs.22,94,096/- was not considered and profit of Rs.21,05,953/- for same assessment year had been set off against brought WP(C).No.10972 OF 2020(V) 3 forward losses, w reflected in Annexure to return submitted by petitioner. All these facts are evidenced from order dated 9th May 2013, Ext.P2. 2. On acquiring knowledge, petitioner availed remedy of Section 154 of Income Tax Act, by submitting rectification application dated 5th June 2013, Ext.P4. However for next assessment year ie., 2013- 14 filed return, under Section 139 of Act within time and claimed brought forward losses to extent of Rs.1,88,143/-. sum of Rs.11,88,143/- was adjusted against proper assessment year 2013-14. But petitioner was astonished to notice intimation under Section 143(1), whereby adjustment of brought forward losses to extent of Rs.1,01,633/- was not considered. 3. Learned counsel appearing on behalf of petitioner submits that aforementioned mistake is evidenced by Ext.P4. department, vide Ext.P5, raised demand of Rs.7,37,950/- and Rs.38,530/- for assessment years 2012-13 and 2013-14 respectively. WP(C).No.10972 OF 2020(V) 4 Petitioner filed detailed reply dated 18 th March 2019, Ext.P6 but no opportunity had been given and despite receipt of reply again similar notice dated 11 th February 2020, Ext.P7 reiterating demand indicated in Ext.P5 was issued by respondent. He submitted that as per information downloaded from income tax site on 18th February 2020, rectification application is forwarded to Jurisdictional Assessing Officer but no action has been taken. 4. Learned counsel appearing on behalf of Income Tax Department submits that he has not received copy of petition and therefore he is unable to obtain instructions or rendered assistance to this Court. 5. Having heard learned counsel for parties, appraised paper book and noticing fact which are not in dispute particularly, Ext.P9 dated 18th February 2020, which reveals pendency of rectification application which stands transferred to Jurisdictional Assessing Officer. grievance of petitioner can be vindicated WP(C).No.10972 OF 2020(V) 5 by issuing directions to first respondent to takes call on rectification application and to decide same within period of 45 days from date of receipt of copy of order. Till then, demand raised vide notices Exts.P5 and P7 is ordered to be kept in abeyance. However, it is made clear that petitioner is at liberty to assail outcome of decision of rectification petition, if he so chooses, in accordance with law. writ petition stands disposed of. Liberty is granted to Income Tax Authority to move appropriate application in case averments of writ petition are found to be false or incorrect. Sd/- AMIT RAWAL sab JUDGE WP(C).No.10972 OF 2020(V) 6 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF INCOME TAX RETURN FILED BY PETITIONER BEFORE 1ST RESPONDENT FOR A. Y. 2012-13. EXHIBIT P2 TRUE COPY OF INTIMATION U/S 143(1) DATED 9.5.2013 ISSUED BY CENTRAL PROCESSING CENTRE, BANGALORE. EXHIBIT P3 TRUE COPY OF REVISED RETURN DATED 5.6.2013 FILED BY PETITIONER BEFORE 1ST RESPONDENT. EXHIBIT P4 TRUE COPY OF INTIMATION DATED 6.10.2014 RECEIVED BY PETITIONER FROM CENTRAL PROCESSING CENTRE, BANGALORE FOR 2013-14. EXHIBIT P5 TRUE COPY OF NOTICE DATED 12.03.2019 RECEIVED BY PETITIONER FROM 1ST RESPONDENT. EXHIBIT P6 TRUE COPY OF REPRESENTATION DATED 18.03.2019 SUBMITTED BY PETITIONER BEFORE 1ST RESPONDENT. EXHIBIT P7 TRUE COPY OF NOTICE DATED 11.02.2020 RECEIVED BY PETITIONER FROM 1ST RESPONDENT. EXHIBIT P8 TRUE COPY OF REPLY DATED 17.02.2020 GIVEN BY PETITIONER TO 1ST RESPONDENT. EXHIBIT P9 TRUE COPY OF INTIMATION DOWNLOADED FROM SITE OF INCOME TAX DEPARTMENT. Paiva Manufacturing Co. v. Income-tax Officer Non-Corp. Ward-1(4), Cochin / Assistant Commissioner of Income-tax, Bangalore / Commissioner of Income-tax (Appeals)-III, Kochi