Aryankavu Service Co-Operative Bank Ltd. v. Income Tax Officer (Intelligence) & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **THURSDAY, THE 12TH DAY OF DECEMBER 2013/21ST AGRAHAYANA, 1935** ## **WP(C).No. 30486 of 2013 (I)** **---------------------------------------** **PETITIONER:** **-------------------** **ARYANKAVU SERVICE CO-OPERATIVE BANK LTD. NO. 2965, REPRESENTED BY ITS SECRETARY, ARYANKAVU P.O., KOLLAM, PIN - 691 316.** **BY ADVS.SRI.P.N.MOHANAN, SMT.I.VINAYAKUMARI, SRI.K.S.ARUNDAS, SRI.C.P.SABARI.** ## **RESPONDENTS:** **------------------------** **1. INCOME TAX OFFICER (INTELLIGENCE), AAYAKAR BHAVAN, TOLL JUNCTION, KOWDIAR P.O, THIRUVANANTHAPURAM - 695 003.** **2. THE DIRECTOR OF INCOME TAX (INTELLIGENCE), KOCHI , PIN - 682 018.** **3. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM - 695 001.** **4. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, CO-OPERATION (C) DEPARTMENT, GOVERNEMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **R1 & R2 BY SRI.JOSE JOSEPH, S.C, R3 & R4 BY SPL.GOVERNMENT PLEADER SRI. MANOJ.P.KUNJACHAN.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12-12-2013, ALONG WITH W.P.(C).NO.30630/2013 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** ## **W.P.(C).NO.30486/2013-I:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 : A TRUE COPYOF THE NOTICE DATED 10.09.2013 ISSUED BY THE FIRST RESPONDENT.** **EXHIBIT P2 : A TRUE COPY OF THE NOTICE DATED 25.11.2013 ISSUED BY THE FIRST RESPONDENT.** **EXHIBIT P3 : A TRUE COPY OF THE JUDGMENT DATED 18.08.2009 IN W.P(C) NO.22697/09.** **EXHIBIT P4 : A TRUE COPY OF THE JUDGMENT REPORT IN (1998) 231 ITR 612(CAL).** ## **RESPONDENTS' EXHIBITS: NIL.** ## **//TRUE COPY//** ## **P.A. TO JUDGE.** **Prv.** ## **P.R.RAMACHANDRA MENON, J.** - - - - - - - - - - - - - - - - - - - - - ## **W.P.(c) Nos.30486, 30630, 30617, 30622 OF 2013** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12[th] day of December, 2013 ## **JUDGMENT** After hearing, judgment was dictated in these cases on 11.12.2013, but before signing the same, the learned counsel appearing for the petitioners submitted that they want to make some additional submissions and hence listed before this Court today as 'to be spoken to'. Heard the matter afresh. 2. The petitioners have approached this Court challenging Ext. P1 proceedings issued by the **Income-Tax Officer ( Intelligence)** , Kozhikode, seeking for information under **Section 133(6)** of the Income Tax Act, 1961. Many a ground has been raised by the petitioners challenging the sustainability of the said proceedings, stating that the verdict already passed by this Court in respect of similar issue does require reconsideration. 3. Heard the learned Standing Counsel for the respondents as well, who submits that exactly similar issue was considered by this W.P.(C)No.30486/2013 2 Court and interference was declined, sustaining the proceedings as per Ext.P3 judgment dated 18.8.2009 in W.P.(C)No. 22697 of 2009 & connected cases. It is also pointed out that the said verdict was confirmed by the Division Bench in W.A.No.1854 of 2009 & connected cases. It is also brought to the notice of this Court by the learned Standing Counsel that the verdict passed by the Division Bench has been affirmed by the Apex Court as well . 4. The learned counsel for the petitioner in W.P.(C) No.30486/2013 points out that, by virtue of Ext.P4 judgment of the Division Bench of the Calcutta High Court, notice under Section 133 (6) could have been issued by the concerned authority only if assessment proceeding was pending, even after the amendment of the statute in the year 1995. But the factual position in the said case was in respect of the cause of action of the year 1979. In the course of passing the judgment, there is an observation with regard to the amendment as well and that is all. The scope of the said decision has been considered by a Division Bench of this Court as per the decision reported in _**The - Chavassery Service Co Operative Bank Ltd. & others v. Income Tax Officer & Others [ (2010) 231 CTR 404 ( Ker.)]**_ , whereby the above W.P.(C)No.30486/2013 3 decision has been distinguished and the verdict passed by this Court ( rendered by me) vide Ext.P3 judgment has been confirmed. The correctness and sustainability of the said verdict passed by the Division Bench was subjected to challenge by the aggrieved parties by approaching the Apex Court and after hearing the matter in detail, the verdict passed by this Court was affirmed by the Apex Court as well, as per the decision in _**Kathiroor Service Co-operative Bank Ltd. & Others. v. Commissioner of Income- Tax & Others [(2013) 263 CTR (SC) 129)**_ . This being the position, the pleadings and prayers raised by the petitioners do not have any factual or legal footing. 5. With regard to the case of the petitioners in W.P.(C)Nos. 30630/2013, 30617/2013 and 30622/2013, the learned counsel for the petitioners points out that the concerned authority who has issued the impugned notice under Section 133(6) is not an authorised officer, he not being an assessing officer, but Income-Tax Officer ( Intelligence). It is also contended that the petitioners/Co-operative Societies stand on a different pedestal, not being a 'Banking Company' and as such, the proceedings issued by the concerned officer are per se wrong and illegal in all respects. The said plea has to be considered and analyed in W.P.(C)No.30486/2013 4 the light of the different provisions of law as discussed already by this Court while rendering Ext.P3 judgment dated 18.8.2009 in 22697/09 and connected cases ( affirmed and upheld as per the decision rendered by the Division Bench and the Apex Court in _**The Chavassery Service Co-Operative Bank Ltd. & others v. Income Tax Officer & Others [ (2010) 231 CTR 404 ( Ker.) & Kathiroor Service Co-operative Bank Ltd. & Others. v. Commissioner of Income- Tax & Others [(2013) 263**_ _**CTR (SC) 129)]**_ respectively. The term 'Assessing Officer' has been defined under Section 2(7A) of the Income-Tax Act and on considering the same with reference to the definition of the term 'person' as defined under 2(31) and also the authority confirmed as per Section 120 of the Income-Tax Act, this Court does not require any second thought to hold that the plea raised by the petitioners is thoroughly wrong and misconceived and it does not hold any water at all. 6. Coming to the factual position as well, the question whether the Income-Tax Officer ( Intelligence) is competent to have issued notice under Section 133(6) was considered by this Court as per Ext.P3 judgment ( produced in W.P.(C)No.30486/2013) and it was the first issue which was considered by the Division Bench answering W.P.(C)No.30486/2013 5 the same in the positive, as per the decision in The Chavassery Service - Co Operative Bank Ltd. & others v. Income Tax Officer & Others . [ (2010) 231 CTR 404 ( Ker.)] That apart, the factual position clearly reveals that the said notice has been issued by the concerned officer with the prior approval/authorization given by the Director as it appears in the opening sentence of the notice itself. This being the position, the matter is squarely covered by the 'second proviso' to Section 133(6) as well and as such, absolutely no interference is called for. The writ petitions fail and they are dismissed accordingly. It is made clear that, since the time stipulated in the impugned notices is already over, the petitioners will be free to approach the concerned authority for granting some extension of time to furnish the particulars as above. If any such application is filed, the same shall be considered and appropriate orders shall be passed in accordance with law. ## **P.R.RAMACHANDRA MENON JUDGE** sv. # W.P.(C)No.30486/2013 6