THE COMMISSIONER OF INCOME TAX, COCHIN V. SHRI.V.M.VARGHESE

ITA/1429/2009

AI Insights

The case involves an appeal by the Commissioner of Income Tax, Kochi against the order of the ITAT, Cochin Bench, which was initially filed in 2009 but faced delays and procedural issues, including the death of the respondent, V.M. Varghese. The Revenue Department sought to set aside the abatement caused by the respondent's death and condone a delay of 3345 days in filing the necessary applications. The court examined the reasons for the delay and the awareness of the Department regarding the respondent's death, ultimately deciding to dismiss the appeal as abated due to the lack of timely action by the Revenue Department.

• Counselvise Citation: [2018] 140 COUNSELVISE.COM (IT) 728453 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 23-05-2018
• Assessment Year: misc
• Laws Referred To: Income Tax Act
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: M NAMBIAR; P GOPINATH; P THOMAS; K MATHAI; JOSON MANAVALAN; KURYAN THOMAS
• Assessee Lawyers: P K R M MENON; JOSE JOSEPH
• Keywords: Abatement; Condonation of delay; Impleading; Income tax appeal; Legal heir
• Section: 220(2A)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & THE HONOURABLE MR. JUSTICE ASHOK MENON WEDNESDAY, THE 23RD DAY OF MAY 2018 / 2ND JYAISHTA, 1940 ITA.No. 1429 of 2009 -------------------- AGAINST THE ORDER/JUDGMENT IN ITA 15/COCH/1997 of I.T.A.TRIBUNAL,COCHIN BENCH DATED 09-08-2002 APPELLANT(S): ------------ THE COMMISSIONER OF INCOME TAX, COCHIN. BY ADVS.SRI.P.K.R.MENON,SR.COUNSEL, GOI(TAXES) SRI.JOSE JOSEPH, SC, FOR INCOME TAX RESPONDENT(S): ------------- 1. V.M. VARGHESE, PENTA ASSOCIATES, COCHIN-31 (DECEASED) 2. PAUL VARGHESE, PROP:10 HEALTH SPA, 19-A, PALI ROAD, OPPOSITE HONG KONG BANK, BANDRA WEST, MUMBAI, MAHARASHTRA - 400 050. R2 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR R2 BY ADV. SRI.P.GOPINATH R2 BY ADV. SRI.P.BENNY THOMAS R2 BY ADV. SRI.K.JOHN MATHAI R2 BY ADV. SRI.JOSON MANAVALAN R2 BY ADV. SRI.KURYAN THOMAS THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 23-05-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.VINOD CHANDRAN & ASHOK MENON, JJ. ------------------------------------------- I.A.Nos. 1976 & 1977 of 2016, C.M.Appn.No.356/2016 and I.T.A.No. 1429 of 2009 ------------------------------------------- Dated this the 23rd day of May, 2018 ORDER/JUDGMENT Vinod Chandran, J. The preliminary question raised is to whether the appeal has to be heard on merits since by reason of the death of the assessee, there is abatement of the above appeal. The Revenue has filed an application for setting aside the abatement, condonation of delay of 3345 days, as also impleading the counter-petitioner, the legal heir of the assesee as additional respondent. The additional respondent now sought to be impleaded is the son of the deceased assessee. The reasons stated in the affidavit accompanying the application for setting aside the abatement and condonation of delay are that the appellant-Commissioner of Income Tax, Kochi was not aware of the death of the respondent. Only when the notice issued to the respondent from this Court could not be served, the death of the respondent-assessee was brought to the notice of the ITA 1429/2009 2 Commissioner and immediately thereafter, the aforesaid applications were filed. 2. A counter-affidavit has been filed by the son of the assessee, who is sought to be impleaded. Annexure R(1)(a) is an application filed before the Chief Commissioner of Income Tax, Kochi by the son of the deceased seeking waiver of interest levied under Section 220(2A) for the block assessment, which is dated 02-02-2011. Annexure R(1)(b) is a letter addressed by the Tax Recovery Officer specifically raising a demand on giving effect to the Tribunal's order dated 03-10-2002, which is challenged in the above appeal. The said demand is dated 28-01-2013. The demand has been raised on the wife of the assessee, showing the assessee as deceased. These communications make it clear that the Department was aware of the death of the assessee long before the endorsement on notice issued by this Court was received back. The impleading petition is filed only on 03-08-2016. 3. The learned Standing Counsel for the Revenue submits that the appeal is filed by the Commissioner of Income Tax, Kochi and the Annexures produced along with the counter-affidavit are ITA 1429/2009 3 with respect to different officers. We are of the opinion that the Revenue cannot take such a contention, especially in the context of Tax Recovery Officer having send a communication to the wife of the deceased assessee specifically giving effect to the order of the ITAT, which is challenged here. The Tax Recovery Officer would necessarily have, before giving effect to the order, enquired about the further proceedings taken on the basis of the order of the ITAT and this appeal itself was filed in the year 2003. Notice was issued only in the year 2009 for reason of the appeals having not been numbered for reason of the challenge raised to the court fees applicable by way of amendment of the Kerala Court Fees and Suits Valuation Act. However, the appeals were filed in time and was pending before this Court unnumbered till 2009 and thereafter numbered. In the year 2013, the Tax Recovery Officer has implemented the order and had communicated the demand to the wife of the deceased assessee. The Department ought to have taken up the proceedings for setting aside the abatement and condonation of delay, if at all, within a reasonable period from Annexure R(1)(a) or R(1)(b). We do not see any explanation for ITA 1429/2009 4 the gross delay caused. The applications hence would stand rejected and as a consequence, the appeal is dismissed as abated, leaving the question of law to be considered in appropriate proceedings. Sd/- K. VINOD CHANDRAN Judge Sd/- ASHOK MENON Judge dkr "