Tourists Resorts Kerala Ltd(name changed to Kerala Tourism Infrastructure ltd), Trivandrum V. ACIT, Trivandrum

MA 79/COCH/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 7379 (ITAT-COCHIN)
• Duration Of Justice: 6 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 31-12-2013
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 29-11-2013
• Assessment Year: 2001-2002
• Appeal Filed On: 25-06-2013
• Court: TRIBUNAL
• Department Lawyers: LATHA V KUMAR
• Assessee Lawyers: C PANKAJAKSHAN C GOVIND
• Keywords: Depreciation; Bonafide belief; Capital expenditure

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE S/SHRI N.R.S.GANESAN, JM AND B.R.BASKAR AN, AM M.P. NO. ARSG. OUT OF APPEAL N O. ASSESSMENT YEAR 71/COCH/2013 1107/COCH/ 2005 1999-2000 72/COCH/2013 1108/COCH/2005 2000-01 73/COCH/2013 1109/COCH /2005 2002-03 74/COCH/2013 689/COCH/20 06 1999-2000 75/COCH/2013 690/COCH/20 06 2000-01 76/COCH/2013 691/CO CH/2006 2003-04 77/COCH/2013 699/CO CH/2006 2002-03 78/COCH/2013 588/CO CH/2007 2004-05 79/COCH/2013 644/COCH/2 007 2001-02 TOURIST RESORTS KERALA LTD. (NAME SUBSEQUENTLY CHANGED AS KERALA TOURISM INFRASTRUCTURE LTD.), THIRUVANANTHAPURAM. [PAN:AABCT 1976C] VS. THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-1(1), THIRUVANANTHAPURAM. (ASSESSEE -APPELLANT) (REVENUE-RESPONDEN T) ASSESSEE BY SHRI C. PANKAJAKSHAN C. GOVIND, CA REVENUE BY SMT. LATHA V. KUMAR, JR. DR DATE OF HEARING 29/11/2013 DATE OF PRONOUNCEMENT 31/12/2013 O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: ALL THESE MISCELLANEOUS PETITIONS HAVE BEEN FILED BY THE ASSESSEE SEEKING RECALL OF THE EX-PARTE COMMON ORDER DATED 13-03-200 9 PASSED BY THE TRIBUNAL AGAINST THE APPEALS FILED BY THE ASSESSEE AS WELL A S THE REVENUE AND THEY RELATE TO THE ASSESSMENT YEARS 1999-2000 TO 2004-05. I.T.A. NOS. 1107-1009COCH/2005, 689-691 & 699/COCH/2006 & 588 & 644/COCH/2007 2 2. THE ASSESSEE HAS FILED THESE MISCELLANEOUS APPLI CATIONS ON 05-04-2013, I.E. AFTER EXPIRY OF FOUR YEARS FROM THE DATE OF TH E COMMON ORDER, REFERRED ABOVE. 3. THE ASSESSEE HAS FILED A LETTER DATED 23.09.2013 , WHEREIN THE ASSESSEE HAS EXPLAINED THE REASONS FOR THE DELAY IN FILING T HESE MISCELLANEOUS APPLICATIONS. FOR THE SAKE OF CONVENIENCE, WE EXTRACT BELOW RELEV ANT PORTION OF THE LETTER CITED ABOVE:- 1. THE HON. INCOME TAX APPELLATE TRIBUNAL HAD DISP OSED OFF THE ABOVE APPEALS BY THEIR CONSOLIDATED ORDER DT. 13-03-2009, WHICH WAS RECEIVED BY YOUR PETITIONER ON 07-04-2009. IN THE SAID ORDER T HE HON. TRIBUNAL HAD DISPOSED OFF THE APPEALS BY AN EX-PARTE ORDER, FOR THE REASON THAT THE PETITIONER HAD NOT ENTERED APPEARANCE BEFORE THE HO N. BENCH FOR THE HEARING POSTED ON VARIOUS DATES. THE ORDER AS ABOVE WAS RECEIVED BY YOUR PETITIONER ON 07-04-2009. 2. AGGRIEVED BY THE ABOVE ORDER, YOUR PETITIONER HA D FILED A MISCELLANEOUS PETITION FOR RECALLING THE ORDER ON T HE SUBMISSION THAT THERE HAS BEEN CERTAIN UNAVOIDABLE REASONS FOR YOUR PETIT IONER NOT ENTERING APPEARANCE ON THE HEARING DATES AS EXPLAINED IN THE PETITIONS AND REQUESTING FOR DISPOSAL OF THE APPEALS AFRESH AFTER GIVING AN OPPORTUNITY TO YOUR PETITIONER OF BEING HEARD IN THE MATTER. THE MISCELLANEOUS PETITIONS WERE FILED ON 05-04-2013 AND THERE HAS BEEN A DELAY OF 4 YEARS AND 24 DAYS IN FILING THE PETITIONS. THE SAID MISCELLANEO US PETITION WAS TAKEN UP FOR HEARING ON 02-08-2013 BY THE HON. BENCH AND AS DIRECTED, THE REASONS FOR THE DELAY AS ABOVE, ARE EXPLAINED HEREUNDER. 3. ALL THE ABOVE APPEALS WERE ENTRUSTED BY THE PETI TIONER WITH THE SENIOR ADVOCATE, THE LATE P. BALACHANDRAN FOR APPEA RANCE AND NECESSARY REPRESENTATIONS BEFORE THE HON. BENCH. YOUR PETITIO NER WAS UNDER THE BONAFIDE BELIEF THAT THE LEARNED ADVOCATE WAS ATTEN DING TO THE MATTERS AS REQUIRED. YOUR PETITIONER WAS NOT AWARE THAT THE L EARNED ADVOCATE HAD FALLEN SICK AND WAS SERIOUSLY ILL WITH A TERMINAL D ISEASE. HE PASSED AWAY ON 26.12.2008. THESE FACTS HAD NOT BEEN BROUGHT TO THE ATTENTION OF YOUR PETITIONER IN DUE TIME BY ANYONE AND THEREFORE THER E WAS THE UNAVOIDABLE FAILURE OF THE APPELLANTS REPRESENTATIVE OF NOT AP PEARING BEFORE THE HON BENCH ON THE HEARING DATES OF THE APPEALS, WHICH WA S BEYOND THE CONTROL OF YOUR PETITIONER. I.T.A. NOS. 1107-1009COCH/2005, 689-691 & 699/COCH/2006 & 588 & 644/COCH/2007 3 ON RECEIPT OF THE SAID ORDER OF THE HON. BENC H, YOUR PETITIONER HAD REFERRED THE MATTER TO OUR CHARTERED ACCOUNTANT S M/S. VARMA & VARMA, THIRUVANANTHAPURAM. AFTER DISCUSSIONS WITH THEM, A VIEW WAS TAKEN THAT IN SO FAR AS ALL OR ANY EXPENDITURE (NOT BEING IN THE NATURE OF CAPITAL EXPENDITURE) LAID OUT OR EXPENDED WHOLLY AN D EXCLUSIVELY FOR THE PURPOSE OF EARNING THE INCOME, INCLUDING DEPRECIATI ON ON THE ASSETS USED WOULD BE ALLOWED U/S. 57(III) OF THE ACT, THERE COU LD POSSIBLY BE NOT MUCH DIFFERENCE WHETHER THE INCOME IS ASSESSED AS INCOME FROM BUSINESS AS PRAYED FOR IN THE APPEAL OR AS INCOME FROM OTHER SO URCES AS HELD BY THE HON. BENCH. SINCE THE LEGAL COUNSEL OF THE PETITIO NER WAS NO MORE AND THE CASES RELATING TO THE FOUR OLD ASSESSMENT YEARS (ASSESSMENT YEAR 2004-05 AND PRIOR YEARS) AND MOST OF THE RECORDS AN D PAPERS RELATING TO THE APPEALS WERE WITH THE LEARNED ADVOCATE, NO FURT HER ACTION WAS TAKEN ON THE APPELLATE ORDERS. 4. THOUGH THE APPELLATE ORDER OF THE HON. BENCH WER E PASSED ON 07- 04-2009, THE ASSESSING OFFICER GAVE EFFECT TO THE O RDERS OF THE HON. TRIBUNAL, FOR ALL THE ASSESSMENT YEARS INVOLVED IN THE APPEALS, BY HIS ORDER PASSED TOWARDS THE END OF FEBRUARY 2013, I.E., AFTE R A LAPSE OF LITTLE LESS THAN 4 YEARS. WHILE PASSING THE ORDER AS ABOVE, TH E ASSESSING OFFICER MADE TWO MAJOR DISALLOWANCES, WHICH WERE NOT ANTICI PATED BY YOUR PETITIONER 5. . 6. AFTER RECEIPT OF THE ASSESSMENT ORDERS AS ABOVE IN THE MONTH OF FEBRUARY 2013, YOUR PETITIONER APPROACHED THEIR CHA RTERED ACCOUNTANTS ONE AGAIN TO COMPLETELY REVIEW ALL THE RECORDS OF T HE PRIOR YEARS AND ADVISE ON WHAT ACTION COULD BE TAKEN TO REDRESS THE HEAVY GRIEVANCES CAUSED ON YOUR PETITIONER BY AN UNJUST ORDER OF DEM AND. 8. THIS ESSENTIAL ASPECT OF THE TRUE FACTS OF THE C ASE UNFORTUNATELY APPEARS TO HAVE NOT BEEN SUFFICIENTLY BROUGHT TO TH E ATTENTION OF THE HON. BENCH WITH CLARITY, SINCE YOUR PETITIONER HAD NO OP PORTUNITY OF BEING HEARD BY THE HON BENCH IN VIEW OF THE ILLNESS AND ABSENCE OF THE LEARNED ADVOCATE. IT WAS UNDER THESE CIRCUMSTANCES THAT IT WAS DECIDED TO APPROACH THE HON. BENCH WITH A MISCELLANEOUS PETITI ON THOUGH LATE, IN THE INTEREST OF JUSTICE AND FAIRNESS AND TO RECALL ITS EX-PARTE ORDER ON THE APPEALS AS ABOVE AND REQUEST FOR THE APPEALS TO BE HEARD BY GIVING YOUR PETITIONER ONE MORE OPPORTUNITY, FOR PRESENTING THE TRUE FACTS OF THE CASE BEFORE THE HON. BENCH. 9. YOUR PETITIONER WAS ALSO ADVISED THAT UNDER THE RELEVANT RULES OF THE INCOME TAX APPELLATE TRIBUNAL RULES, 1963, I.E. , RULES 24 & 25, WHICH I.T.A. NOS. 1107-1009COCH/2005, 689-691 & 699/COCH/2006 & 588 & 644/COCH/2007 4 PERMIT FILING OF A MISCELLANEOUS PETITION IN SUCH C ASES BEFORE THE HON. BENCH, THERE IS NO SPECIFIC TIME LIMIT SPECIFIED FO R FILING THE PETITION. IT IS THE HONEST BELIEF OF YOUR PETITIONER THAT THE HON. BENCH IS SUFFICIENTLY EMPOWERED TO ADMIT THE MISCELLANEOUS PETITION IF TH E BENCH IS SATISFIED THAT THERE IS A GENUINE CASE FOR YOUR PETITIONER FO R BEING HEARD IN THE MATTER. 10. AS EXPLAINED ABOVE, THE FAIRLY LONG DELAY OF 4 YEARS AND 24 DAYS WAS CAUSED FOR REASONS BEYOND THE CONTROL OF YOUR P ETITIONER, WHICH IN SUBSTANCE, ESSENTIALLY ARE AS UNDER: YOUR PETITIONER COULD NOT HAVE THE BENEFIT OF THE L EARNED ADVOCATE FOR ADVICE ON SUCH IMPORTANT MATTERS EITHER AT THE TIME WHEN THE APPEALS WERE POSTED BEFORE THE HON. BENCH OR AFTER THE APPE ALS WERE DISPOSED OFF EX-PARTE BY THE HON. BENCH, SINCE THE LEARNED ADVOC ATE HAD PASSED AWAY BY THEN ON ACCOUNT OF TERMINAL ILLNESS IN VERY UNFO RTUNATE CIRCUMSTANCES. YOUR PETITIONER WAS ALSO NOT ADVISED BY ANY JUNIOR LAWYER OF THE ADVOCATE IN REGARD TO THE APPEAL PROCEEDINGS NOR YOUR PETITI ONER COULD GET ALL THE BACK FILES AND RECORDS OF THE APPEALS RELATING TO T HE OLD ASSESSMENT YEARS INVOLVED, FROM THE OFFICE OF THE ADVOCATE IN DUE TI ME. THE CHARTERED ACCOUNTANTS TO WHOM THE PETITIONER RE FERRED THE MATTER WERE UNDER THE BONAFIDE BELIEF THAT THE ORDER OF TH E TRIBUNAL THOUGH EX- PARTE, WAS FAIR IN SO FAR AS NO APPEARANCE WAS MADE BY YOUR PETITIONER AND SINCE IN ANY CASE THE HON. BENCH HAD HELD THAT THE INCOME IS TO BE ASSESSED UNDER OTHER SOURCES, IT WAS THEIR BONAFIDE UNDERSTANDING THAT ALL THE ADMISSIBLE DEDUCTIONS WILL BE ALLOWED U/S. 57 A ND IT MAY THEREFORE NOT BE NECESSARY TO APPROACH THE HON. BENCH AGAIN TO RE CALL THEIR ORDER FOR ALL THE ASSESSMENT YEARS AND HEAR THE APPEALS AFRESH, W HICH MAY OR MAY NOT BE APPRECIATED SINCE, IT WAS YOUR PETITIONER, WHO D EFAULTED IN NOT HAVING APPEARED FOR THE HEARINGS POSTED ON VARIOUS DATES. HOWEVER, YOUR PETITIONER AS WELL AS THE CHARTERED ACCOUNTANTS COU LD NOT ANTICIPATE THAT THE ASSESSING OFFICER WOULD MAKE SUCH HUGE DISALLOW ANCES BOTH IN RESPECT OF DEPRECIATION AND ON PROPORTIONATE EXPENSES RELAT ING TO INVESTMENTS. EFFECTIVELY, THE ASSESSING OFFICER, WHILE ASSESSING THE INCOME, NEITHER ALLOWED THE DEDUCTIONS ADMISSIBLE UNDER INCOME FROM OTHER SOURCES UNDER SEC. 57, NOR ALLOWED THE DEDUCTIONS ADMISSIBL E UNDER INCOME FROM PROPERTY U/S. 24, OF THE ACT. THE ASSESSING OFFICER THUS RAISED AN UNDULY HEAVY DEMAND OF TAX AND INTEREST, THAT TOO BY GIVIN G EFFECT TO THE ORDER OF THE HON. BENCH, NOW AFTER A LAPSE OF LONG 4 YEARS. THE MISCELLANEOUS PETITIONS WERE FILED WITHIN 45 DAYS OF RECEIPT OF T HE ORDERS OF THE ASSESSING OFFICER AS ABOVE. I.T.A. NOS. 1107-1009COCH/2005, 689-691 & 699/COCH/2006 & 588 & 644/COCH/2007 5 11. SINCE ABSOLUTE HARDSHIP HAS NOW BEEN CAUSED TO YOUR PETITIONER ON ACCOUNT OF SUCH UNFAIR AND UNJUST ORDERS OF THE ASS ESSING OFFICER, YOUR PETITIONER WAS LEFT WITH NO OPTION BUT TO APPROACH THE HON. TRIBUNAL ONCE AGAIN TO BE CONSIDERATE AND GOOD ENOUGH TO ADMIT TH E MISCELLANEOUS PETITIONS AND DECIDE AFRESH ON THE ISSUE BY TAKING INTO ACCOUNT THE STRAIGHT FACTS OF THE CASE THAT ONLY THE BUILDING W AS LET OUT BY YOUR PETITIONER WITHOUT ANY MACHINERY, PLANT OR ASSETS I N THE LEASE ARRANGEMENT AND IN SUCH CIRCUMSTANCES, THE INCOME I N THE NORMAL COURSE IS TO BE ASSESSED UNDER THE HEAD INCOME FROM PROPER TY. 12. YOUR PETITIONER PRAYS THAT THE HON. BENCH MAY B E PLEASED TO CONDONE THE DELAY AND ADMIT THE MISCELLANEOUS PETIT IONS AND RECALL ITS ORDERS ON THE APPEALS AS ABOVE AND PASS APPROPRIATE ORDERS AFTER GIVEN AN OPPORTUNITY TO YOUR PETITIONER OF BEING HEARD IN TH E MATTER. 4. WE HEARD THE PARTIES AND CAREFULLY PERUSED TH E RECORD. THE LD A.R REITERATED THE ABOVE SAID SUBMISSIONS AT THE TIME O F HEARING AND THEREAFTER FILED A WRITTEN SUBMISSION ALSO. THE ASSESSEE IS AN UNDE RTAKING OWNED BY THE KERALA STATE GOVERNMENT. ADMITTEDLY, THE APPEALS FILED BY THE ASSESSEE AS WELL AS THE REVENUE WERE DISPOSED OF BY THE TRIBUNAL EX-PARTE, I.E., WITHOUT THE PRESENCE OF THE ASSESSEE WITH THE FOLLOWING REASONING:- 8. WHEN THESE APPEALS FILED BY THE ASSESSEE WER E CALLED ON FOR HEARING, NOBODY WAS PRESENT FOR THE ASSESSEE IN SPI TE OF NOTICE. THESE APPEALS HAVE ALREADY BEEN POSTED FOR HEARING AND DI SPOSAL FOR ABOUT 20 TIMES IN THE PAST. ADJOURNMENTS HAVE BEEN GRANTED MAINLY ON THE REQUEST OF THE ASSESSEE. IN THESE CIRCUMSTANCES, W E ARE NOT INCLINED TO DELAY THE DISPOSAL OF THESE APPEALS. ACCORDINGLY, WE PROCEED TO DISPOSE OF THE APPEALS EX-PARTE, QUA THE ASSESSEE. WE HEAR D SHRI C. KARTHIKEYAN, LD ADDL. COMMISSIONER OF INCOME TAX, APPEARING FOR THE REVENUE. 5. AT THIS STAGE, WE FEEL IT PERTINENT TO REFER TO RULE 24 AND RULE 25 OF THE APPELLATE TRIBUNAL RULES, 1963, WHICH RESPECTIVELY PRESCRIBES THE PROCEDURE FOR HEARING OF APPEAL EX PARTE FOR DEFAULT BY THE APPEL LANT AND RESPONDENT. FOR THE SAKE OF CONVENIENCE, WE EXTRACT BELOW THE RELEVANT RULES:- I.T.A. NOS. 1107-1009COCH/2005, 689-691 & 699/COCH/2006 & 588 & 644/COCH/2007 6 HEARING OF APPEAL EX PARTE FOR DEFAULT BY THE APPE LLANT. 24. WHERE, ON THE DAY FIXED FOR HEARING OR ON ANY O THER DATE TO WHICH THE HEARING MAY BE ADJOURNED, THE APPELLANT DOES NOT AP PEAR IN PERSON OR THROUGH AN AUTHORIZED REPRESENTATIVE WHEN THE APPEA L IS CALLED ON FOR HEARING, THE TRIBUNAL MAY DISPOSE OF THE APPEAL ON MERITS AFTER HEARING THE RESPONDENT: PROVIDED THAT WHERE AN APPEAL HAS BEEN DISPOSED OF AS PROVI DED ABOVE AND THE APPELLANT APPEARS AFTERWARDS AND SATISFIES THE TRIBUNAL THAT THERE WAS SUFFICIENT CAUSE FOR HIS NON-APPEARANCE, WHEN T HE APPEAL WAS CALLED ON FOR HEARING, THE TRIBUNAL SHALL MAKE AN ORDER SE TTING ASIDE THE EX PARTE ORDER AND RESTORING THE APPEAL. HEARING OF APPEAL EX PARTE FOR DEFAULT BY THE RESPO NDENT. 25. WHERE, ON THE DAY FIXED FOR HEARING OR ANY OTH ER DAY TO WHICH THE HEARING MAY BE ADJOURNED, THE APPELLANT APPEARS AND THE RESPONDENT DOES NOT APPEAR IN PERSON OR THROUGH AN AUTHORIZED REPRESENTATIVE WHEN THE APPEAL IS CALLED ON FOR HEARING, THE TRIBUNAL M AY DISPOSE OF THE APPEAL ON MERITS AFTER HEARING THE APPELLANT. PROVIDED THAT WHERE AN APPEAL HAS BEEN DISPOSED OF AS PROVI DED ABOVE AND THE RESPONDENT APPEARS AFTERWARDS AND SATISFIES THE TRIBUNAL THAT THERE WAS SUFFICIENT CAUSE FOR HIS NON-APPEARANCE W HEN THE APPEAL WAS CALLED ON FOR HEARING, THE TRIBUNAL SHALL MAKE AN O RDER SETTING ASIDE THE EX PARTE ORDER AND RESTORE THE APPEAL. UNDER THE PROVISO TO RULE 24 AND RULE 25, THE TRIBU NAL IS EMPOWERED TO SET ASIDE THE EX PARTE ORDER AND RESTORE THE APPEAL, IF THE APPELLANT/RESPONDENT APPEARS AFTERWARDS AND SATISFIES THE TRIBUNAL THAT THERE WAS SUFFICIENT CAUSE FOR NON-APPEARANCE WHEN THE APPEAL WAS CALLED ON FO R HEARING. 6. NOW WE SHALL EXAMINE THE EXPLANATIONS GIVEN B Y THE ASSESSEE VIS--VIS THE PROVISO TO RULE 24 AND RULE 25 OF THE APPELLATE TRI BUNAL RULES, 1963. THE REASONS CITED BY THE ASSESSEE CAN BE SUMMARIZED AS UNDER:- (A) ALL THE APPEALS WERE ENTRUSTED TO THE SENIOR A DVOCATE SHRI P. BALACHANDRAN AND THE ASSESSEE WAS UNDER BONA FIDE B ELIEF THAT THE ADVOCATE WAS ATTENDING THE HEARINGS. THE ASSESSEE WAS ALSO NOT AWARE THAT THE LEARNED ADVOCATE HAD FALLEN SICK AND WAS S ERIOUSLY ILL WITH A I.T.A. NOS. 1107-1009COCH/2005, 689-691 & 699/COCH/2006 & 588 & 644/COCH/2007 7 TERMINAL DISEASE. THEREAFTER HE PASSED AWAY ON 26.1 2.2008. THE JUNIOR LAWYERS ALSO DID NOT GIVE ANY ADVICE WITH REGARD TO THE APPEALS PENDING BEFORE THE TRIBUNAL. (B) ON RECEIPT OF THE ORDER OF THE TRIBUNAL, THE ASSESSEE APPROACHED ITS CHARTERED ACCOUNTANTS, VIZ., M/S VARMA & VARMA, CHA RTERED ACCOUNTANTS, THIRUVANANTHAPURAM AND A VIEW WAS TAKEN THAT THE AS SESSING OFFICER, IN THE SET ASIDE PROCEEDINGS, WOULD ALLOW ALL THE EXPE NSES AND DEPRECIATION U/S 57 OF THE ACT. SINCE THE SENIOR COUNSEL WAS N O MORE AND SINCE THE RECORDS WERE AVAILABLE WITH HIM, NO FURTHER ACTION WAS TAKEN ON THE ORDER PASSED BY THE TRIBUNAL. (C) THE ASSESSING OFFICER GAVE EFFECT TO THE ORDE R OF TRIBUNAL ONLY IN FEBRUARY, 2013 AND IN THE CONSEQUENTIAL ORDER, THE ASSESSING OFFICER MADE TWO MAJOR DISALLOWANCES. (D) AT THAT POINT OF TIME, IT WAS REALIZED THAT T HE FACTS OF THE CASE WERE NOT SUFFICIENTLY BROUGHT TO THE ATTENTION OF THE TR IBUNAL. SINCE ORDER WAS PASSED BY THE TRIBUNAL, EX-PARTE, THE ASSESSEE DID NOT GET AN OPPORTUNITY TO BRING THE CORRECT FACTS ON RECORD. (E) RULE 24 AND RULE 25 OF THE APPELLATE TRIBUNA L RULES, 1963 DO NOT PRESCRIBE ANY TIME LIMIT FOR RECALLING ITS ORDER PA SSED EX-PARTE. 7. WE HAVE ALREADY NOTICED THAT THE TRIBUNAL IS EMPOWERED TO SET ASIDE ITS ORDER AND RESTORE THE APPEAL ONLY IF THE ASSESSEE S ATISFIES THE TRIBUNAL THAT THERE WAS SUFFICIENT CAUSE FOR NON-APPEARANCE WHEN THE AP PEAL WAS CALLED ON FOR HEARING. FROM THE EXPLANATIONS GIVEN BY THE ASSESS EE, WE NOTICE THAT THE ONLY REASON GIVEN IS THAT THE SENIOR ADVOCATE SHRI P. BA LACHANDRAN, TO WHOM THE APPEALS WERE ENTRUSTED, PASSED AWAY ON 26.12.2008 A ND HIS JUNIORS DID NOT GIVE ADVICE TO THE ASSESSEE WITH REGARD TO THE APPEALS P ENDING BEFORE THE TRIBUNAL. WE HAVE ALREADY NOTICED THAT THE ASSESSEE IS A KERA LA GOVERNMENT UNDERTAKING, WHICH IS NORMALLY ASSISTED BY ABLE PEOPLE. FURTHER IT HAD ENGAGED A SENIOR COUNSEL FOR HANDLING THE APPEALS PENDING BEFORE THE TRIBUNAL. IT IS ALSO ADMITTED THAT THE ASSESSEE WAS AWARE OF THE DEMISE OF THE SE NIOR COUNSEL IN DECEMBER 2008. FROM THE ORDER SHEET OF THE RECORD, WE NOTI CE THAT THE COUNSEL OF THE I.T.A. NOS. 1107-1009COCH/2005, 689-691 & 699/COCH/2006 & 588 & 644/COCH/2007 8 ASSESSEE HAD FILED ADJOURNMENT PETITION ON 03.12.20 08, I.E, BEFORE HIS DEATH AND THE APPEALS WERE THEN ADJOURNED TO 11.3.2009. 8. THERE SHOULD NOT BE ANY DISPUTE THAT THE ASSE SSEE ALSO HOLDS EQUAL RESPONSIBILITY TO PURSUE THE APPEALS AND FURTHER, A PRUDENT BUSINESS MAN WOULD NORMALLY TAKE EXTRA CAUTION WHEN THE COUNSEL IS ILL . FURTHER, ON KNOWING THE DEMISE OF THE COUNSEL, A PRUDENT BUSINESS MAN WOULD NORMALLY TAKE ALL THE NECESSARY STEPS IN ORDER TO ENSURE THAT THE APPEALS FILED BEFORE THE TRIBUNAL ARE DULY PROSECUTED. THE ASSESSEE, BEING A GOVERNMENT UNDERTAKING, IT IS UNABLE TO COMPREHEND THAT THE ASSESSEE DID NOT TAKE ANY STEPS IN THAT DIRECTION. IN THE INSTANT CASE, WE NOTICE THAT THE ASSESSEE HAS SIMPL Y SHIRKED AWAY FROM ITS RESPONSIBILITY BY STATING THAT THE JUNIOR LAWYER DI D NOT GIVE ADVICE TO THE ASSESSEE, WHICH WE ARE UNABLE TO ACCEPT. ALL OTHE R EXPLANATIONS GIVEN BY THE ASSESSEE RELATE TO THE EVENTS THAT HAPPENED SUBSEQU ENT TO THE RECEIPT OF THE ORDER, WHICH CANNOT BE CONSIDERED AS A REASONABLE C AUSE FOR NON-APPEARANCE IN TERMS OF THE PROVISO TO RULE 24 AND RULE 25 OF THE TRIBUNAL. IN ANY CASE, WE NOTICE THAT THE ASSESSEE, AFTER CONSULTING ITS CHAR TERED ACCOUNTANTS, HAS TAKEN A CONSCIOUS DECISION NOT TO PURSUE THE MATTER, MAY BE WITH THE BELIEF THAT THE CONSEQUENT ORDER THAT WOULD BE PASSED BY THE ASSESS ING OFFICER TO GIVE EFFECT TO THE ORDER OF THE TRIBUNAL MAY NOT BE DETRIMENTAL. HOWEVER, SINCE THE CONSEQUENTIAL ORDER DID NOT TURN TO THE EXPECTATION S OF THE ASSESSEE, IT APPEARS THAT THE ASSESSEE HAS TAKEN THE DECISION TO FILE TH ESE MISCELLANEOUS APPLICATIONS AFTER THE EXPIRY OF FOUR YEARS. 9. IN VIEW OF THE FOREGOING DISCUSSIONS, WE AR E OF THE VIEW THAT THE ASSESSEE HAS FAILED TO SHOW THAT THERE WAS A REASONABLE CAUS E FOR NON-APPEARANCE ON THE DATE OF HEARING OF THE APPEAL AS PRESCRIBED IN THE PROVISO TO RULE 24 AND RULE 25 OF THE APPELLATE TRIBUNAL RULES, 1963. HENCE, WE A RE NOT ABLE TO ACCEPT THE EXPLANATIONS GIVEN BY THE ASSESSEE AND ACCORDINGLY DISMISS ALL THE APPLICATIONS FILED BY THE ASSESSEE. I.T.A. NOS. 1107-1009COCH/2005, 689-691 & 699/COCH/2006 & 588 & 644/COCH/2007 9 10. IN THE WRITTEN SUBMISSIONS, THE ASSESSEE HA S POINTED OUT THE MISTAKES APPARENT FROM THE RECORD. WE DO NOT FIND IT NECESS ARY TO CONSIDER THEM IN VIEW OF OUR DECISION STATED IN THE PRECEDING PARAGRAPH. 11. IN THE RESULT, ALL THE MISCELLANEOUS APPLIC ATIONS FILED BY THE ASSESSEE ARE DISMISSED. PRONOUNCED ACCORDINGLY ON 31ST DECEMBER, 2013 SD/- SD/- (N.R.S.GANESAN) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: KOCHI DATED: 31ST DECEMBER, 2013 GJ COPY TO: 1. TOURIST RESORTS KERALA LTD.(NAME SUBSEQUENTLY CH ANGED AS KERALA TOURISM INFRASTRUCTURE LTD.), 4 TH FLOOR, VIPANCHIKA TOWERS, TC 24/588(6), GOVT. GUES T HOUSE JUNCTION, THYCAUD P.O., THIRUVANANTHAPURAM -6 95 014. 2. THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE -1(1), THIRUVANANTHAPURAM. 3. THE COMMISSIONER OF INCOME-TAX(APPEALS), THIRUVA NANTHAPURAM. 4. THE COMMISSIONER OF INCOME-TAX, THIRUVANANTHAPUR AM 5. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 6. GUARD FILE. BY ORDER (ASSISTANT REGISTRAR) I.T.A.T, COCHIN