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2016 (9) TMI 1080 - KERALA HIGH COURT

2016 (9) TMI 1080 - KERALA HIGH COURT - [2016] 388 ITR 600 - Assessment of income - total income was determined by adding surcharge on sales tax under the Kerala General Sales Tax Act and turn over tax levied under the Kerala Surcharge on Taxes Act, 1957 - Held that:- According to us, irrespective of the controversy concerning Sections 240 and 245, the appellant is entitled to succeed. Admittedly, for the assessment years 2007-2008 to 2011-2012, the turn over of surcharge and turn over tax paid .....

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te Authority. All these orders were challenged by the revenue before this Court. This Court confirmed the order passed by the Tribunal and connected cases. As on date, there is no appeal against those judgments. - This, therefore, means that the total income of the assessee could not have been determined by adding the surcharge and turn over tax paid by the assessee. If that be so, not only that the assessee was entitled to have the amounts found to be refundable in Exts.P2 and P10 series re .....

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reasons, we are inclined to set aside the judgment under appeal and also Ext.P2 and direct the first respondent to refund the amount mentioned in Ext.P2 to the assessee forthwith. - Writ Appeal No.1335 of 2016 - Dated:- 29-8-2016 - Antony Dominic and Dama Seshadri Naidu, JJ. FOR THE APPELLANT : ADVS.SRI.ANIL D. NAIR, SRI.R.SREEJITH, KUM.SOUMYA PRAKASH, KUM.MEKHALA M.BENNY FOR THE RESPONDENT : SRI.K.M.V.PANDALAI, INCOME TAX DEPARTMENT JUDGMENT Antony Dominic, J. In this appeal, after we had dicta .....

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riefly stated the facts of the case are that the appellant, a Government of Kerala undertaking, is an assessee under the Income Tax Act. Ext.P1 is an order of assessment passed against the assessee for the assessment year 2012- 2013 where the total income was determined by adding surcharge on sales tax under the Kerala General Sales Tax Act and turn over tax levied under the Kerala Surcharge on Taxes Act, 1957. 5. In so far as the assessments for the assessment years 2007-2008 to 2011-2012 are c .....

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ect to the orders of the CIT(A) pertaining to the assessment years 2007- 2008 to 2011-2012 and that it was proposed to adjust the refund amount against the demand of tax due under Ext.P1 for the assessment year 2012-2013. Ext.P2 itself makes it clear that the said intimation was given to the appellant under Section 245 of the Income Tax Act. 6. Subsequently the appellant received Ext.P10A to P10E dated 6.2.2015, issued under Section 240 of the Income Tax Act determining the amount due for refund .....

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ent of this Court in ITA No.68 of 2015 and connected cases, whereby final orders passed by the Tribunal confirming the deletion of surcharge and turn over tax paid by the assessee were upheld, the addition made in Ext.P1 assessment order is patently illegal and, therefore, no adjustment could have been made by the department towards a non-existing liability. He also contended that having regard to the scheme of the provisions of Sections 240 and 245, except after determining the amount under Sec .....

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varied in appeal, the department was entitled to invoke its power under Section 245 and to adjust the amounts due for refund for the assessment years 2007-2008 to 2011-2012. He also referred to us Section 292B and Section 292BB and contended that a technical breach would not invalidate the notices issued by the department. 9. We have considered the submissions made. According to us, irrespective of the controversy concerning Sections 240 and 245, the appellant is entitled to succeed. Admittedly, .....

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he Tribunal and the Tribunal followed its earlier order and upheld the order passed by the First Appellate Authority. All these orders were challenged by the revenue before this Court. This Court confirmed the order passed by the Tribunal in the judgment in ITA No.68 of 2015 and connected cases. As on date, there is no appeal against those judgments. 10. This, therefore, means that the total income of the assessee could not have been determined by adding the surcharge and turn over tax paid by t .....

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dable to the assessee consequent to the orders passed by the Commissioner of Income Tax Appellate Tribunal and this Court. For these reasons, we are inclined to set aside the judgment under appeal and also Ext.P2 and direct the first respondent to refund the amount mentioned in Ext.P2 to the assessee forthwith. The writ appeal is allowed as above. Antony Dominic and Dama Seshadri Naidu, JJ. - Writ Appeal No.1335 of 2016 - 22-08-2016 JUDGMENT Antony Dominic, J. The appellant filed writ petition N .....

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