P.J.BESSY V. ASST.REGISTRAR INCOME TAX

WP(C)/28795/2013

AI Insights

The case involves P.J. Bessy, the petitioner, who challenged the decision of the Income Tax Appellate Tribunal, Cochin Bench, which dismissed his appeal due to a significant delay of over six years. The petitioner argued that he had remitted the appeal fees and dispatched the appeal through courier, evidenced by a challan. However, the Tribunal found no record of receiving the appeal. The court noted that the petitioner failed to follow up on the appeal's status for an extended period, which contributed to the decision to dismiss the delay condonation application. The court also considered the petitioner's claim of similar cases being allowed, but found that these were not applicable as the petitions were filed within the statutory time limits.

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 755766 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 17-06-2014
• Assessment Year: misc
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: P K R MENON; JOSE JOSEPH
• Assessee Lawyers: M MENON; C CHANDRASEKHARAN
• Keywords: Appellate order; Assessment Order; Delay condonation; Income tax appeal

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN TUESDAY, THE 17TH DAY OF JUNE 2014/27TH JYAISHTA, 1936 WP(C).No. 28795 of 2013 (Y) ---------------------------------------- PETITIONER(S): ---------------------- P.J.BESSY, (PAN ACAPB7771M, NEDUMPARAMBIL HOUSE, GLORY BHAVAN, THRISSUR DISTRICT, KERALA STATE. BY ADVS.SRI.M.UNNIKRISHNA MENON SRI.C.CHANDRASEKHARAN RESPONDENT(S): ------------------------- 1. INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, COCHIN, REPRESENTED BY ASSISTANT REGISTRAR INCOME TAX APPELATE TRIBUNAL, COCHIN BENCH - 682 016. 2. THE INCOME TAX OFFICER, WARD - 2 (1), CIRLCE I, THRISSUR - 678 001. BY ADVS. SRI.P.K.R.MENON,SR.COUNSEL, GOI (TAXES) SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PJ WP(C).No. 28795 of 2013 (Y) ---------------------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXHIBIT-P1- TRUE COPY OF THE ASESSMENT ORDER DATED 13/03/2001 EXHIBIT-P2- TRTUE COPY OF THE APPELLATE ORDER DATED 08/03/2006. EXHIBIT-P3- TRUE COPY OF THE APPEAL ALONG WITH DELAY CONDONATION PETITION. EXHIBIT-P4- TRUE COPY OF THE CHALLAN DATED 01/01/2006 FOR RS.79,70/- EXHIBIT-P5- TRUE COPY OF THE APPEAL BEFORE IST RESPONDENT DATED 02/02/2013. EXHIBIT-P6- TRUE COPY OF THE CONDONATION DELAY PETITION ALONG WITH AFFIDAVIT DATED 02/02/2013. EXHIBIT-P7- TRUE COPY OF THE ORDER OF THE IST RESPONDENT DATED 10/07/2013. EXHIBIT-P8- TRUE COPY OF THE ORDER OF THE IST RESPONDENT DATED 20/10/2006. EXHIBIT-P9- TRUE COPY OF THE LETTER ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT DATED 01/10/2013. RESPONDENT(S)' EXHIBITS --------------------------------------- R2(A): COPY OF LETTER DATED 1/10/13 R2(B): COPY OF THE LETTER DATED 7/11/13 R2(C): COPY OF THE RELEVANT PAGE OF THE DESPATCH REGISTER AS PER ENTRY NO.4843. / TRUE COPY / P.S. TO JUDGE PJ K. VINOD CHANDRAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P(C) No. 28795 of 2013 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of June, 2014 J U D G M E N T The petitioner is aggrieved by the dismissal of his appeal as a consequence of the dismissal of the delay condonation application. The appeal was filed with a delay of six years, eight months and three days. The reason stated is that the petitioner had in fact, remitted the appeal fees as evidenced by Ext.P4 Challan and had also despatched the same through courier. The order of the Tribunal impugned herein, being Ext.P7, however, refutes the receipt of such appeal at the office of the Tribunal. The petitioner also, does not have any acknowledgement, to prove that the same was received in the office of the Tribunal. The reasons stated for condonation of the long delay of more than six years was found to be not satisfactory and the delay condonation application was dismissed by the Tribunal as per Ext.P7, WPC.28795/2013 : 2 : which is impugned herein. 2. The learned counsel, admits, that there is absolutely no evidence to show that it was received at the Tribunal. However, again, banks on the challan, by which the appeal fee was remitted as also the despatch; said to have been made through courier service. Even if the petitioners contentions are taken at its face value, it was the bounden duty of the petitioner to enquire about the appeal after the same was despatched through courier, especially since no acknowledgement was received by the petitioner. Obviously, though the contention, is that the appeal was despatched on 03.06.2006; the petitioner did not enquire about its fate for more than six years. 3. The further contention raised by the learned counsel for the petitioner is that the partners who were similarly situated to the petitioner herein, had filed appeals in time, and the same were considered and their claims allowed as per Ext.P8 order of the Tribunal. The petitioner hence contends that even in the case of the WPC.28795/2013 : 3 : petitioner, Ext.P8 would be applicable. Such a contention could have been raised, if an appeal was filed within time or within the extended time as provided by the statute and if the Tribunal accepted as satisfactory, the explanation offered. In this context, it has to be noticed that even according to the petitioner, the appeals of all the other partners were heard together and disposed of by Ext.P8 order. Ext.P8 order itself is seen passed on 20.10.2006. Definitely, the petitioner would have come to know of such order having been passed and any diligent litigant would have made enquiries with respect to the appeal despatched by him through courier. More so, when an identical claim raised by, other similarly placed persons, was allowed in the year 2006. 4. In such circumstance, this Court does not find any reason to interfere with Ext.P7 order of the Tribunal. Like any litigant, the Department is also entitled to some finality in the matters, when the assessee has by his own default failed to institute a proper appeal WPC.28795/2013 : 4 : and prosecute the same diligently before the Tribunal. The above facts does not commend any interference on the dismissal of the application to condone delay, made by the Tribunal. The learned counsel also styles Ext.P9 as a request for rectification; again barred by limitation and further more remained unattended despite Ext.R2(b) notice, as revealed from the Department's statement. 5. The reliefs prayed in the writ petition are to re-do the assessment in accordance with Ext.P8 order of the Income Tax Appellate Tribunal, to entertain the belated appeal deeming it to be filed intime, to refund the amount collected as tax and for compensatory cost. Ext.P8 order admittedly does not pertain to the petitioner and there are no sufficient reasons to deem the highly belated appeal to be in time. When the assessment of the petitioner remained unchallenged and for that sole reason acquired finality; no question arises of refund. As for the prayer for compensatory costs, suffice it to say that, on the facts disclosed, lesser mortals would have WPC.28795/2013 : 5 : balked from so making a claim. Writ petition is devoid of merit and the same is dismissed leaving the respective parties to bear their costs. Sd/- (K. VINOD CHANDRAN, JUDGE) jma //true copy// P.A to Judge "