M/S.HOTEL AKASH & ROHINI SHOPPING COMPLE V. COMMISSIONER OF INCOME TAX (APPEALS)& 4

WP(C)/38616/2010

AI Insights

The case involves M/S. Hotel Akash & Rohini Shopping Complex, represented by its managing partner G. Soman, who challenged the decisions of the Income Tax appellate authority regarding the rejection of their appeals due to delay. The appeals pertained to various assessment years from 2003-04 to 2007-08. The petitioners argued that the appellate authority had not considered their case properly and had rejected the appeals based on procedural delays without a fair hearing on merits. The court considered the petitioners' lack of expertise in tax laws and formal education, and despite finding the reasons for delay not very convincing, decided to condone the delay on the condition of payment of costs.

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 768347 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 04-07-2011
• Assessment Year: misc
• Other Referred Cases: WP(C) No. 25024 of 2010
• Laws Referred To: Income Tax Act
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH
• Assessee Lawyers: TOMSON EMMANUEL
• Keywords: Appeal; Assessment Year; Condonation of delay; Income Tax; Merits
• Section: 250; 234A

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 4TH JULY 2011 / 13TH ASHADHA 1933 WP(C).No. 38616 of 2010(B) ------------------------ PETITIONER : --------------------- M/S. HOTEL AKASH & ROHINI SHOPPING COMPLEX, PULAMON, KOTTARAKKARA, KOLLAM DISTRICT-691 005, REPRESENTED BY ITS MANAGING PARTNER G.SOMAN. BY ADV. SRI.TOMSON T.EMMANUEL RESPONDENT(S): ------------------------- 1. COMMISSIONER OF INCOME TAX (APPEALS), KOWDIAR, THIRUVANANTHAPURAM-695 003. 2. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, MANNANIYYA COMPLEX, ANDAMUKKAM, KOLLAM-691 001. 3. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, KANDANKULATHY BUILDING, M.G.ROAD, COCHIN-682 011. 4. THE RECOVERY OFFICER, RANGE-I, AAYAKAR BHAVAN, KOWDIAR, THIRUVANANTHAPURAM-695 003. 5. THE DIRECTOR GENERAL OF INCOME TAX (INV.), RAILWAY STATION ROAD, ERNAKULAM SOUTH, COCHIN-682 011. R1 TO R5 BY ADV. SRI. JOSE JOSEPH, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/07/2011, ALONG WITH WPC NO. 38364 OF 2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 38616 of 2010(B) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE PROCEEDINGS OF THE 5TH RESPONDENT ISSUED TO THE PETITIONER, IN WAVERING INTEREST U/S. 234A FOR CERTAIN ASSESSMENT YEAR. EXT.P2 : COPY OF THE RECTIFIED ORDER DATED 24.03.2009 ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT FOR THE AY: 2004-05. EXT.P2(a) : COPY OF THE RECTIFIED ORDER DATED 2.03.2009 ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT FOR THE AY: 2005-06. EXT.P3 : COPY OF THE ASSESSMENT ORDER DATED 30.12.2008 ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT FOR THE AY:2003-04. EXT.P3(a) : COPY OF THE ASSESSMENT ORDER DATED 30.12.2008 ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT FOR THE AY:2006-07. EXT.P3(b) : COPY OF THE ASSESSMENT ORDER DATED 30.12.2008 ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT FOR THE AY:2007-08. EXT.P4 : COPY OF APPEAL DATED 19.05.10 FILED FOR AY:2003-04 BEFORE THE 1ST RESPONDENT. EXT.P4(a) : COPY OF APPEAL DATED 19.05.10 FILED FOR AY:2004-05 BEFORE THE 1ST RESPONDENT. EXT.P4(b) : COPY OF APPEAL DATED 19.05.10 FILED FOR AY:2005-06 BEFORE THE 1ST RESPONDENT. EXT.P4(c) : COPY OF APPEAL DATED 19.05.10 FILED FOR AY:2006-07 BEFORE THE 1ST RESPONDENT. EXT.P4(d) : COPY OF APPEAL DATED 19.05.10 FILED FOR AY:2007-08 BEFORE THE 1ST RESPONDENT. EXT.P5 : COPY OF REQUEST FOR CONDONING DELAY IN FILING THE APPEAL FOR THE AY: 2003-04 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P5(a) : COPY OF REQUEST FOR CONDONING DELAY IN FILING THE APPEAL FOR AY: 2004-05 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. (Contd...) WP(C).No. 38616 of 2010(B) EXT.P5(b) : COPY OF REQUEST FOR CONDONING DELAY IN FILING THE APPEAL FOR THE AY: 2005-06 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P5(c) : COPY OF REQUEST FOR CONDONING DELAY IN FILING THE APPEAL FOR AY: 2006-07 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P5(d) : COPY OF REQUEST FOR CONDONING DELAY IN FILING THE APPEAL FOR AY: 2007-08 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P6 : COPY OF STAY PETITION DATED 11.06.2010 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT FOR THE AY: 2003-04. EXT.P6(a) : COPY OF STAY PETITION DATED 11.06.2010 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT FOR THE AY: 2004-05. EXT.P6(b) : COPY OF STAY PETITION DATED 11.06.2010 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT FOR THE AY: 2005-06. EXT.P6(c) : COPY OF STAY PETITION DATED 11.06.2010 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT FOR THE AY: 2006-07. EXT.P6(d) : COPY OF STAY PETITION DATED 11.06.2010 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT FOR THE AY: 2007-08. EXT.P7 : COPY OF LETTER DATED 14.06.2010 ISSUED BY THE 3RD RESPONDENT IN FORWARDING THE STAY PETITIONS TO THE 1ST RESPONDENT FOR THE AY 2003-04 TO 2007-08 (EXT-P6 SERIES OF STAY PETITIONS) EXT.P8 : COPY OF THE RR NOTICE DATED 23.07.10 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER. EXT.P9 : COPY OF ATTACHMENT ORDER DATED 29.03.2010 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER AFTER MARKING COPY TO THE VILLAGE OFFICERS, KOTTARAKKARA/ MYLOM/PUTHOOR/ NEENDKARA AND THE SUB REGISTRARS OF KOTTARAKKARA/ CHAVARA. EXT.P10 : COPY OF CERTIFICATE DATED 17.09.2010 FOR SURVEY NO. 158/1 & 158/2 OF KOTTARAKARA VILLAGE AND SURVEY NO. 166/9 OF NEENDAKARA VILLAGE, ISSUED BY A REGISTERED VALUER OF THE INCOME TAX DEPARTMENT. (Contd...) WP(C).No. 38616 of 2010(B) EXT.P11 : COPY OF JUDGMENT DATED 30.09.2010 IN WP(C) NO. 25024 OF 2010 PASSED BY THIS HON'BLE COURT. EXT.P12 : COPY OF LETTER DATED 15.11.2010 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER IN POSTING EXT. P4 SERIES OF APPEALS. EXT.P13 : COPY OF POSTING NOTICE U/S. 250 OF THE IT ACT DATED 15.11.2010 SENT BY POST BY THE 1ST RESPONDENT TO THE PETITIONER IN POSTING EXT.P4 SERIES OF APPEALS. EXT.P14 : COPY OF ARGUMENT NOTE DATED 22.11.2010 SUBMITTED BEFORE THE 1ST RESPONDENT, BY THE PETITIONER, FOR THE AY: 03-04. EXT.P14(a) : COPY OF ARGUMENT NOTE DATED 22.11.2010 SUBMITTED BEFORE THE 1ST RESPONDENT, BY THE PETITIONER, FOR THE AY: 04-05. EXT.P14(b) : COPY OF ARGUMENT NOTE DATED 22.11.2010 SUBMITTED BEFORE THE 1ST RESPONDENT, BY THE PETITIONER, FOR THE AY: 05-06. EXT.P14(c) : COPY OF ARGUMENT NOTE DATED 22.11.2010 SUBMITTED BEFORE THE 1ST RESPONDENT, BY THE PETITIONER, FOR THE AY: 06-07. EXT.P14(d) : COPY OF ARGUMENT NOTE DATED 22.11.2010 SUBMITTED BEFORE THE 1ST RESPONDENT, BY THE PETITIONER, FOR THE AY: 07-08. EXT.P15 : COPY OF COMMON ORDER NO. ITA 81 TO 91/CENT/TVM/CIT(A)-1/10-11 DATED 22.11.2010 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. EXT.P16 : COPY OF THE CHELLAN NO. 00004 DATED 13.01.2011 FOR RS. 5,00,000/- REMITTED BY THE PETITIONER TOWARDS INCOME TAX FOR THE AY: 2003-04. EXT.P17 : COPY OF CHALAN NO. 00001 DATED 30.01.2011 OF AXIS BANK LTD FOR A SUM OF RS. 6,27,758/- REMITTED TOWARDS INCOME TAX ARREARS. EXT.P18 : COPY OF CHALAN NO. 00002 DATED 18.02.2011 OF AXIS BANK LTD FOR A SUM OF RS. 8,72,242/- REMITTED TOWARDS INCOME TAX ARREARS. RESPONDENT'S EXHIBITS - NIL //TRUE COPY// P.S. TO JUDGE Mn S.SIRI JAGAN, J. ================== W.P.(C).Nos.38616 & 38364 of 2010 ================== Dated this the 4th day of July, 2011 J U D G M E N T The petitioners in these writ petitions are a firm and its managing partner, who are assessees under the Income Tax Act. Against assessment for the years 2003-04 to 2007-08 and 2002-03 to 2007-08, the petitioners filed appeals with petitions to condone delay of 504 days' in filing appeals. The petitioners earlier approached this Court and obtained judgment for consideration of his applications for condonation of delay in filing the appeals. The appellate authority considered the appeals and the applications to condone delay, and rejected the appeals on the ground of delay entering findings on merits also. The petitioners challenge the same. According to the petitioners, the appellate authority has not considered the case on its right perspective. They submit that actually the appellate authority posted the appeals themselves for hearing after numbering the same and rejected the appeals on the ground of delay taking into account certain concessions made by the authorised representative during the assessment proceedings. According to the petitioners, the petitioners had not authorised the authorised representative to make any such concessions and the same is not binding on the petitioners. The petitioners also cite various decisions on this subject. w.p.c.38616/10 & cc 2 2. The learned standing counsel for the Income Tax Department stoutly opposes the prayers in the writ petitions. 3. I have considered rival contentions in detail. 4. I have perused the applications for condonation of delay filed by petitioners before the appellate authority. The reasons mentioned therein may not be elaborate or convincing enough. But taking into account the fact that the managing partner of the assessee is a not a person well versed in taxation laws, who does not also have much formal education also, I am inclined to direct the appellate authority to condone the delay on terms. Accordingly, the impugned orders are quashed. The appellate authority is directed to condone the delay in filing the appeals on condition that the petitioners pay a total amount of ` 1 lakh as costs for both appeals together or @ ` 50,000/- each. Orders in this regard shall be passed, as expeditiously as possible, at any rate, within one month from the date of receipt of a certified copy of this judgment. The costs shall be paid within one month from the date of the order. Thereafter, further proceedings in the appeals shall be taken in accordance with Ext.P11 judgment passed by this Court. The writ petitions are disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge "