MRS. THANKAMMA BABY V. COMMISSIONER OF INCOME TAX(CENTRAL)

RP/721/2012

AI Insights

The case involves a review petition filed by Mrs. Thankamma Baby, a partner in a dissolved firm, against a judgment that upheld an income tax assessment made within the time limit. The review petitioner's main grievance was the recovery proceedings initiated against her for the tax dues of the dissolved firm. The court referred to Section 189 of the Income Tax Act, which allows for the continuation of legal proceedings against a dissolved firm as if it were still in existence. The court dismissed the review petition regarding the issue of limitation but allowed the connected appeal to ensure that the appellant had a fair opportunity to present her case regarding the assessed income.

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 767697 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 27-09-2012
• Assessment Year: misc
• Laws Referred To: Income Tax Act
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: P K R MENON; JOSE JOSEPH
• Assessee Lawyers: P HARIDAS; S SIKKY; LIJI KUTTAPPAN
• Keywords: Dissolved firm; Income tax assessment; Limitation; Recovery proceedings; Review petition
• Section: 189

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 27TH DAY OF SEPTEMBER 2012/5TH ASWINA 1934 RP.No. 721 of 2012 ( ) IN ITA/12/2010 -------------------------------------- AGAINST THE JUDGMENT IN ITA.12/2010 DATED 06-01-2011 REVIEW PETITIONER/NOT A PARTY IN ITA: -------------------------------------- MRS. THANKAMMA BABY, 15/560, MARY SADANAM, THURUTHIKKADU PO, MALLAPPALLY TALUK PATHANAMTHITTA DISTRICT. BY ADVS.SRI.P.HARIDAS SMT.S.SIKKY SMT.LIJI KUTTAPPAN RESPONDENTS/APPELLANT & RESPONDENTS: -------------- 1. COMMISSIONER OF INCOME TAX(CENTRAL) (CENTRAL) KOCHI 682 018. 2. M/S.T.O.ABRAHAM & CO.(DISSOLVED), ENGINEERS AND CONTRACTORS,THURUTHIKADU PO THIRUVALLA 695 597. 3. T.O.ABRAHAM,THOTTATHIL PUTHENPURA, URUMBIKUNNEL,THURUTHIKADU,KALLOOPPARA MALLAPPALLY TALUK,PATHANAMTHITTA DISTRICT 689 583. BY SRI.P.K.R.MENON(SR.), SC FOR INCOME TAX SRI.JOSE JOSEPH, SC FOR INCOME TAX THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ALONG WITH I.T.A. NO.162/2012 ON 27-09-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: APPENDIX (R.P. NO.721/2012) ANNEXURE A: TRUE COPY OF NOTICE GIVEN TO THE DEPARTMENT BY THE PETITIONER THROUGH INTIMATION DT.5.10.2004. ANNEXURE B: TRUE COPY OF PUBLIC NOTICE ISSUED IN DESHABHIMANI DAILY DT.13.10.2004. TRUE COPY P.S. TO JUDGE C.N.RAMACHANDRAN NAIR, & M.L.JOSEPH FRANCIS, JJ. ................................................................................ R.P. No.721 of 2012 in I.T.A. No.12 of 2010 & I.T.A. No.162 of 2012 ................................................................................ Dated this the 27th day of September, 2012. ORDER Ramachandran Nair, J. Review Petition is filed to review judgment in the Writ Appeal whereunder we upheld the assessment as made within time and not barred by limitation. Review petitioner's grievance is that she as partner of the dissolved firm is facing recovery proceedings for recovery of arrears of tax due from the dissolved firm. Senior counsel for the respondent referred to Section 189 and submitted that for the purpose of proceedings under the Income Tax Act, the dissolved firm shall deem to be continuing for all purposes. We do not think there is any need to consider whether after dissolution of the firm every partner of the dissolved firm is entitled to notice or not because in this case the firm was represented by a managing partner and so long as limitation is concerned, we decided the case on merit through detailed judgment. Nothing stops the review petitioner from filing leave to file before the RP 721/2012 & ITA 162/2012 2 Supreme Court, if she has any grievance against the judgment. However, we feel review petitioner is entitled to limited relief in the connected appeal I.T.A. No.162/2012 which is filed by her against the order of the Tribunal passed after remand by this court vide judgment under review i.e. in I.T.A. No.12/2010. 2. It is seen that even after remand, Tribunal had disposed of the appeal exparte, probably because the managing partner who was representing the firm has lost interest as recovery is not against him but is stated to be against the appellant in the I.T.A. Since appellant was not party before the Tribunal and since the case is decided by the Tribunal on merit without hearing any of the partners of the dissolved firm, we feel one opportunity can be given to the appellant to represent the case on merit before the Tribunal. We make it clear that the judgment shall be treated as final as far as question of limitation is concerned because on the issue decided we do not find any ground to review the judgment. However, with regard to the income assessed, appellant can argue the case on merit i.e., on the amount assessed before the Tribunal. We, therefore, dismiss the Review Petition with the above observations and allow I.T.A. No.162/2012 by setting aside RP 721/2012 & ITA 162/2012 3 the order of the Tribunal and by remanding the matter for giving an opportunity to the appellant to represent the matter in appeal. There will be direction to the department to furnish current address of all the other partners of the dissolved firm to the Tribunal to be individually impleaded and to issue notice to each of them so that another round of appeal should not reach this court on same ground of non-inclusion of members of the dissolved firm as parties in appeal. There will be direction to the Tribunal to hear the appellant in I.T.A. No.162/2012 and other partners of the dissolved firm and dispose of the appeal on merits within a period of three months from date of receipt of copy of this judgment. The appellant shall not seek any adjournment before the Tribunal when the case is posted for disposal after impleading the other partners of the firm. C.N.RAMACHANDRAN NAIR Judge M.L.JOSEPH FRANCIS Judge pms "