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TMI Blog2016 (9) TMI 1080X X X X Extracts X X X X X X X X Extracts X X X X ..... ded by the Tribunal in the assessee's favour for one of the assessment years. That order was followed by the Commissioner of Income Tax (Appeals) before whom the appeals concerning the remaining years were pending at that time. The revenue carried those matters also before the 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 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t appeal is filed against the judgment of the learned single judge in WPC No.18723 of 2016. The writ petition having been dismissed, this appeal is filed. 4. Briefly 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 concerned, the assessee's total income in those years was determined by making sim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 Section 240 as is done by Exts.P10A to P10E, adjustment under Section 245 as per Ext.P2 could have been made. Therefore, according to the learned counsel, the learned single judge erred in dismissing the writ petition. 8. The learned counsel for the revenue contended that even in spite of the orders of the Tribunal and the judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal 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 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 refunded to it, but also the addition of the surcharge and turn over tax to the total income in Ext.P1 assessment order for the year 2012- 2013 is also illegal. Therefore, despite the fact that an appeal filed against Ext.P1 is pending consideration of the Commissioner of Income Tax (Appeals), as of now, the department is not entitled to adjust the amount refundable to the assessee consequent to the orders passed by the Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued Ext.P10 series under Section 240 of the Income Tax Act giving effect to the appellate orders for the assessment years 2007-2008 to 2011-2012. This, according to the counsel, is against the provisions of Section 240 and 245 of the Income Tax Act. 4. However, when this argument was raised, the learned standing counsel for the department submitted that as a result of the judgment of this Court in ITA Nos.112 of 2015 and connected cases whereby the appeals filed by the department against the orders of the Tribunal pertaining to the assessment years 2007-2008 to 2011-2012 were dismissed, the adjustment made as per Exts.P2 and P10 series cannot be sustained and that the amounts have to be refunded to the appellant. 5. Since the departme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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