P.J.BESSY V. INCOME TAX APPELLATE TRIBUNAL

WA/951/2014

AI Insights

The case revolves around the appellant, P.J. Bessy, who was a partner in M/s. Mamata Motels, Thrissur, and did not report any income from the capital gains of a property sale, leading to an assessment order (Ext.P1). After the dismissal of her first appeal and a significant delay in filing a second appeal to the Tribunal, which was rejected due to delay, Bessy filed a writ petition. This petition was dismissed by the learned Single Judge, affirming the finality of the assessment order. However, the Tribunal had previously nullified similar assessments for other partners in the same firm (Ext.P8). The High Court found that justice required Bessy to be treated similarly to her co-partners, despite the delay in her appeal, and thus directed the revision of her assessment order in accordance with Ext.P8.

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 699376 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 20-08-2014
• Assessment Year: misc
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH
• Assessee Lawyers: M MENON; C CHANDRASEKHARAN
• Keywords: Assessment Order; Capital Gains; Delay in filing appeal; Revision of assessment order

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU WEDNESDAY, THE 20TH DAY OF AUGUST 2014/29TH SRAVANA, 1936 WA.No. 951 of 2014 () IN WP(C).28795/2013 ------------------------------------------- (AGAINST THE ORDER/JUDGMENT IN WP(C) 28795/2013 of HIGH COURT OF KERALA DATED 17-06-2014) APPELLANT(S)/PETITIONER:-: -------------------------- P.J.BESSY, (PAN NO.ACAPB7771M), NEDUMPARAMBIL HOUSE, GLORY BHAVAN, THRISSUR DISTRICT, KERALA STATE. BY ADVS.SRI.M.UNNIKRISHNA MENON SRI.C.CHANDRASEKHARAN RESPONDENT(S)/RESPONDENTS:-: ----------------------------- 1. INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, COCHIN, REPRESENTED BY ASST. REGISTRAR INCOME - TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN - 682 016. 2. THE INCOME - TAX OFFICER, WARD-2(1), CIRCLE 1, THRISSUR - 678 001. R BY SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 20-08- 2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC & DAMA SESHADRI NAIDU, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No. 951 OF 2014 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of August , 2014 JUDGMENT Antony Dominic,J. This appeal is filed against the judgment of the learned Single Judge dismissing W.P.(C) No.28795/2013 filed by the appellant. The appellant was a partner of a firm named M/s. Mamata Motels,Thrissur, along with 14 other persons. The Motel along with the land and the building was sold. However, the assessee did not return any income towards capital gains arising from the transfer of the property. This resulted in Ext.P1 order of assessment. The First appeal filed before the Commissioner of Income Tax(Appeals) was dismissed by Ext.P2 order. Long thereafter, the appellant filed Ext.P3 appeal before the Tribunal with a delay of 6 years 8 months and 3 days. That was rejected by Ext.P7 order on the ground of delay. It is thereafter, the writ petition was filed contending that the Tribunal had allowed the appeals filed by ten other partners vide Ext.P8 order and that therefore, the assessment should be revised in the light of Ext.P8 or the Tribunal should hear the appeal on merits. The appellant also prayed for consequential benefits. The learned Single Judge dismissed the writ petition taking the view W.A.No..951 of 2014 : 2 : that the assessment order has become final and it is this judgment which is under challenge before us. 2. It is true that until an assessment order is varied in accordance with law, the order continues to be in force and binding on the assessee. In that view of the matter, the learned Single Judge is justified in his conclusion also. However, facts of the case would show that the other partners of the firm, in which the appellant also was a partner, got the assessment order passed against them nullified by virtue of Ext.P8 order passed by the Tribunal. The Department does not have a case that the case of the appellant is in any manner different from the other partners. In such a situation, there is no reason that, on the only ground that the appellant filed appeal belatedly, she should be fastened with the tax liability which in law could not have been fastened on her. In such circumstances, justice demands that the appellant should also be given the benefit of Ext.P8 appellate order passed by the Tribunal in favour of the other partners of the firm. Therefore we are inclined to set aside the judgment of the learned Single Judge and dispose of the writ appeal itself with a direction to the 2nd respondent to revise Ext.P1 order of assessment passed against the appellant in the light of Ext.P8 order passed by the W.A.No..951 of 2014 : 3 : Appellate Tribunal. This shall be done, as expeditiously as possible, at any rate, within two months of production of a copy of this judgment. The appellant will also be entitled to consequential benefits. Needless to say that when consequential orders are passed, the assessee will not be entitled any interest on any amount due to be refunded to her. Writ Appeal is disposed of. Sd/- ANTONY DOMINIC , JUDGE . Sd/- DAMA SESHADRI NAIDU, JUDGE. dpk /True copy/ W.A.No..951 of 2014 : 4 : "