KERALA TOURISM INFRASTRUCTURE LIMITED V. THE ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE 1 (1)

WP(C)/14992/2014

AI Insights

The case involves Kerala Tourism Infrastructure Limited, a government company, which filed a Writ Petition against the Assistant Commissioner of Income Tax and the Income Tax Appellate Tribunal, Cochin Bench. The petitioner contested the rejection of three miscellaneous applications that sought to recall an earlier order and conduct a re-hearing for the assessment years 1999-2000, 2000-01, and 2002-03. The original order, passed by the Tribunal, had been accepted without appeal by the petitioner until a significant delay, after which they sought to challenge it. The court examined the reasons for the delay and the circumstances under which the original appeal was not pursued, ultimately finding the petitioner's explanations insufficient to justify the delay.

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 755762 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 24-06-2014
• Assessment Year: misc
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH
• Assessee Lawyers: JOSEPH MARKOSE; V MARKOS; BINU MATHEW; TOM THOMAS; ABRAHAM MARKOS; ABRAHAM THARAKAN
• Keywords: Assessment Year; Delay in filing; Income from Business; Income from house property; Income from other sources; Miscellaneous petition; Re-hearing
• Section: 25; 24

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN TUESDAY, THE 24TH DAY OF JUNE 2014/3RD ASHADHA, 1936 WP(C).No. 14992 of 2014 (Y) ---------------------------- PETITIONER(S): ------------ KERALA TOURISM INFRASTRUCTURE LIMITED, 4TH FLOOR, VIPANCHIKA TOWERS, TC-24/588(6), GOVT. GUEST HOUSE JUNCTION, THYCAUD, TRIVANDRUM-695 014. REPRESENTED BY ITS MANAGING DIRECTOR MR.ANIL KUMAR. BY ADVS.SRI.JOSEPH MARKOSE (SR.) SRI.V.ABRAHAM MARKOS SRI.BINU MATHEW SRI.TOM THOMAS (KAKKUZHIYIL) SRI.ABRAHAM JOSEPH MARKOS SRI.ABRAHAM VARGHESE THARAKAN RESPONDENT(S): --------------- 1. THE ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE 1 (1), TRIVANDRUM-695 003. 2. THE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, KENDRIYA BHAVAN, KAKKANAD, COCHIN-682 037. BY SRI.JOSE JOSEPH, SC, FOR INCOME TAX. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rvs/ WP(C).No. 14992 of 2014 (Y) APPENDIX PETITIONER(S)' EXHIBITS : EXT. P1: COPY OF GOVERNMENT ORDER G.O.(MS)NO.266/94/GAD DATED 1.9.1994. EXT. P2: COPY OF GOVERNMENT ORDER NO.G.O(MS)NO.200/99/GAD DATED 29.3.1999. EXT. P3: COPY OF ORDER DATED 13.3.2009 PASSED BY THE INCOME TAX APPELLATE TRIBUNAL, COCHIN. EXT. P4(A): COPY OF ORDER DATED 31.1.2013 PASSED BY THE 1ST RESPONDENT FOR ASSESSMENT YEAR 1999-2000. EXT. P4(B): COPY OF ORDER DATED 31.1.2013 PASSED BY THE 1ST RESPONDENT FOR ASSESSMENT YEAR 2000-2001. EXT. P4(C): COPY OF ORDER DATED 31.1.2013 PASSED BY THE 1ST RESPONDENT FOR ASSESSMENT YEAR 2001-2002. EXT. P4(D): COPY OF ORDER DATED 31.1.2013 PASSED BY THE 1ST RESPONDENT FOR ASSESSMENT YEAR 2002-2003. EXT. P4(E): COPY OF ORDER DATED 31.1.2013 PASSED BY THE 1ST RESPONDENT FOR ASSESSMENT YEAR 2003-2004 EXT. P4(F): COPY OF ORDER DATED 31.1.2013 PASSED BY THE 1ST RESPONDENT FOR ASSESSMENT YEAR 2004-2005 EXT. P5(A): COPY OF MISCELLANEOUS PETITION DATED 25.3.2013 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT IN ITA NO.1107/COCH/2005 - ASSESSMENT YEAR 1999-2000. EXT. P5(B): COPY OF MISCELLANEOUS PETITION DATED 25.3.2013 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT IN ITA NO.1108/COCH/2005 - ASSESSMENT YEAR 2000-2001. EXT. P5(C): COPY OF MISCELLANEOUS PETITION DATED 25.3.2013 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT IN ITA NO.1109/COCH/2005 - ASSESSMENT YEAR 2002-2003. EXT. P5(D): COPY OF MISCELLANEOUS PETITION DATED 25.3.2013 FILED BY THE DEPARTMENT BEFORE THE 2ND RESPONDENT IN ITA NO.689/COCH/2006 - ASSESSMENT YEAR 1999-2000. EXT. P5(E): COPY OF MISCELLANEOUS PETITION DATED 25.3.2013 FILED BY THE DEPARTMENT BEFORE THE 2ND RESPONDENT IN ITA NO.690/COCH/2006 - ASSESSMENT YEAR 2000-2001. EXT. P5(F): COPY OF MISCELLANEOUS PETITION DATED 25.3.2013 FILED BY THE DEPARTMENT BEFORE THE 2ND RESPONDENT IN ITA NO.644/COCH/2006 - ASSESSMENT YEAR 2001-2002. EXT. P5(G): COPY OF MISCELLANEOUS PETITION DATED 25.3.2013 FILED BY THE DEPARTMENT BEFORE THE 2ND RESPONDENT IN ITA NO.699/COCH/2006 - ASSESSMENT YEAR 2002-2003. EXT. P5(H): COPY OF MISCELLANEOUS PETITION DATED 25.3.2013 FILED BY THE DEPARTMENT BEFORE THE 2ND RESPONDENT IN ITA NO.691/COCH/2006 - ASSESSMENT YEAR 2003-2004. EXT. P5(I): COPY OF MISCELLANEOUS PETITION DATED 25.3.2013 FILED BY THE DEPARTMENT BEFORE THE 2ND RESPONDENT IN ITA NO.588/COCH/2007 - ASSESSMENT YEAR 2004-2005. EXT. P6: COPY OF ORDER DATED 31.12.2013 PASSED BY THE 2ND RESPONDENT APPELLATE TRIBUNAL IN APPEAL NOS.1107 TO 1109/COCH/2005, 689 TO 691/COCH/2006 AND 699/COCH/2006, 588/COCH/2007 AND 644/COCH/2007. RESPONDENT(S)' EXHIBITS: NIL. /true copy/ P.A.TO JUDGE rvs/ K. VINOD CHANDRAN, J. ===================== W.P.(C) No. 14992 of 2014 ====================== Dated this the 24th day of June, 2014 J U D G M E N T The petitioner, admittedly a Government Company, did not file an appeal from Ext.P3 order of the Income Tax Appellate Tribunal, which was dated 13.03.2009. The petitioner contends that Ext.P3 was passed without hearing the counsel for the appellant/petitioner. In the present Writ Petition, the petitioner assails the rejection of three miscellaneous applications filed, for all the three assessment years; for recalling the order passed and conduct a re-hearing after restoring the appeal. The maintainability of such a prayer under Rule 24 and 25, itself is feeble, considering the delay occassioned. 2. Ext.P3, relates to three assessment years, being 1999-2000, 2000-01 and 2002-03, insofar as the apeals filed by the petitioner/assessee and four appeals filed by the Department. There is no dispute that the counsel, who W.P.(C) No. 14992 of 2014 2 was entrusted with the appeal, passed away before the order was issued. However, even according to the petitioner, the appeal was heard on 13.03.2009 and the Counsel expired on 26.12.2008. No appeal was also filed from Ext.P3, nor was an application filed before the Tribunal seeking a hearing on the issues raised in the appeal memorandum, immediately thereafter. Later on, the assessee filed three miscellaneous applications before the Tribunal, seeking a re-hearing of the appeal, which were dated 05.04.2013, after expiry of four years from the date of the common order. 3. On going through Ext.P5 series of applications, the only reason stated is that, the counsel was indisposed on account of serious illness and later on passed away and hence the appeals were not attended to. The assessee also claims that such circumstance was beyond the control of the assessee. Definitely, the non appearance of the assessee or his representative or a counsel on the date of hearing was not beyond the control of the assessee. The Counsel W.P.(C) No. 14992 of 2014 3 passed away three months before the appeal was taken up and a diligent litigant should have followed up the matter. In any event, the death of the Counsel before the matter was heard does not explain the circumstance of the petitioner/assessee having slept over the matter for another four years. 4. The assessee had filed a letter dated 23.09.2013 before the Tribunal, which was filed in support and making additional averments, with respect to the explanation for the delay occassioned. The Tribunal extracted the same, in Ext.P6 order, and what is relevant is that the assesee had, in the said letter, admitted to the fact that there was a conscious decision taken, not to file an appeal from the order of the Tribunal. That is available in paragraph 3 of the letter, which is extracted in Ext.P6 order. The said reason has some nexus with the merits of the appeal. An incidental peep into the merits show that, the assessee had derived some income from a property, which they claimed as “income from business”. The claim was declined by the W.P.(C) No. 14992 of 2014 4 Assessing Officer who treated it as “income from other sources”. The assessee filed a first appeal and the 1st Appellate Authority found that the same is, “income from house property”. The assessee being aggrieved by the findings of the appellate authority filed a further appeal before the Income Tax Appellate Tribunal, which was disposed of by Ext.P3 reversing the order in appeal and restoring that of the Assessing Officer. A conscious decision was taken not to file an appeal, since, whether it be “income from business” or “income from other sources”, the assessee's exigibility to tax would be the same. 5. The learned Senior Counsel points out that in the circumstance of the income being treated as “income from other sources”, the assessee would not be entitled to many of the deductions, which are allowable under the head “business income”. What comes out from the above statement of facts is that, the aseessee was earlier of the opinion that no appeal need be filed from the order of the Tribunal, but later on changed their opinion and for the W.P.(C) No. 14992 of 2014 5 purpose of claiming deductions, decided to file an appeal. Obviously the change in opinion was motivated by the orders dated 31.01.2013, produced as Ext.P4 series; which gave effect to the Income Tax Appellate Tribunal's order. That however, cannot be a sufficient reason for the long delay occasioned in challenging, Ext.P3 order. For all the above reasons, the Tribunal cannot be faulted for having refused to exercise discretion to condone the delay of more than 4 years. This Court finds no circumstance to persuade an interference there with. The Writ Petition hence is dismissed. No costs. K. VINOD CHANDRAN, JUDGE SB "