USHA JOHNSON V. THE COMMISSIONER OF INCOME TAX

ITA/194/2013

AI Insights

The case involves Usha Johnson, the proprietrix of M/s. Global Roadways (now known as Maruthayath Transports), who appealed against the decision of the Income Tax Appellate Tribunal, which had dismissed her statutory appeals on the grounds of delay. The Tribunal found the cause shown for the condonation of delay unsatisfactory. Usha Johnson argued that her health issues, specifically treatment for Diabetes Mellitus and related problems, prevented her from being aware of the impugned orders. The High Court of Kerala at Ernakulam, after considering the merits of the case and the arguments presented, decided that the substantial question of law raised was whether the Tribunal had acted in accordance with law while refusing to condone the delay. The court found in favor of the appellant, allowing the appeals and setting aside the Tribunal's orders, conditional upon the payment of costs to the Department.

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 758860 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 05-02-2014
• Assessment Year: misc
• Laws Referred To: Income Tax Act
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: P MENON; JOSE JOSEPH
• Assessee Lawyers: M NAMBIAR; P MENON; P THOMAS; K MATHAI
• Keywords: Condonation of delay; Depreciation Rate; Income tax appeal; Income tax appellate tribunal; Vehicle hire
• Section: 263

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOTTA THIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE WEDNESDAY , THE 5TH DAY OF FEBRUARY 2014/16TH MAGHA, 1935 ITA.No. 194 of 2013 ----------------------- ITA NO. 123/COCH/2012 OF INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, COCHIN DATED 26-04-2013 ..... APPELLANT/APPELLANT IN ITA: ------------------------------------------------- USHA JOHNSON, PROPPRIETRIX, M/S.GLOBAL ROADWAYS (NOW KNOWN AS MARUTHAY ATH TRANSPORTS) MARUTHAY ATH BUILDINGS, PALLIMUKKU, KUNDARA, KOLLAM. BY ADVS.SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.GOPINATH MENON SRI.P.BENNY THOMAS SRI.K.JOHN MATHAI RESPONDENT(S)/RESPONDENT.: ---------------------------------------------------- THE COMMISSIONER OF INCOME TAX, AAYAKAR BHAVAN, KOWDIAR, THIRUVANANTHAPURAM-695 003. BY ADV. SRI.P.K.R.MENON,SR.COUNSEL, GOI(TAXES) SRI.JOSE JOSEPH, SC, INCOME TAX THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 05-02-2014, ALONG WITH ITA.NO. 195/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ITA NO.194/2013 APPENDIX APPELLANT'S ANNEXURES: ANNEX.A: COPY OF THE ORDER DTD. 28/01/2011 PASSED BY THE COMMISSIONER UNDER SECTION 263 OF THE INCOME TAX ACT. ANNEX.B: COPY OF THE PROCEEDINGS BEARING NO.IAP/W-4/KLM/ 2011-12, DTD. 28/06/2011. ANNEX.C: COPY OF THE APPEAL DTD. 21/04/2012 FILED BY THE APPELLANT BEFORE THE INCOME TAX APPELLATE TRIBUNAL, COCHIN IN RESPECT OF ASSESSMENT YEAR 2006-07. ANNEX.D: COPY OF THE APPLICATION DTD. 21/04/2012 FILED BY THE APPELLANT FOR CONDONING THE DELAY OF 340 DAYS IN PREFERRING THE APPEAL. ANNEX.E: COPY OF THE COMMON ORDER PASSED IN ITA NOS.123 AND 124/COCH/2012 ON 26/04/2013. RESPONDENT'S ANNEXURES: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOTTATHIL B.RADHAKRISHNAN & A.MUHAMED MUSTAQUE, JJ. .................................................................... I.T.A.Nos.194 & 195 of 2013 .................................................................... Dated this the 5th day of February, 2014. J U D G M E N T 'C.R.' Thottathil B.Radhakrishnan, J. 1.These appeals arise from the dismissal of statutory appeals by the Income Tax Appellate Tribunal on ground of delay after holding that the cause shown for condonation of delay in both those appeals are not satisfactory. 2.These appeals are by the same person, a woman, who pleaded that she is undergoing treatment for Diabetes Mellittus and allied problems as to numbness, low back pain, etc. and was unaware of the fact that orders impugned before the Tribunal were issued. 3.Heard the learned counsel for the appellant and the learned Standing Counsel for the Income Tax Department in the light of the materials and the averments in the applications for condonation of delay. We have also looked into the substance of ITA 194 & 195/13 -2- the appeals as placed for consideration of the Tribunal, on their merits. 4.The fundamental question that appears to be raised in the appeals before the Tribunal was as to whether the transactions of the appellant with M/s. Bharat Petroleum Corporation Limited and M/s. Indian Oil Corporation Limited are transactions under which the appellant could be treated as providing vehicles for hire (tanker lorries to carry materials) or whether the appellant was employing herself as a carrier. This distinction may be relevant to make the choice as to the rate of depreciation that has to be applied in terms of the Income Tax Rules. We clarify that we are not expressing finally on that. 5.It is not as if the appellant had not shown any cause at all to condone the delay. The sufficiency or otherwise in such matters have necessarily to be weighed also, on the scales of justice, depending upon the question whether the delay could be condoned at least on terms. This largely depends on the cause ITA 194 & 195/13 -3- pleaded for the delay and the view that the appellate court, tribunal or authority could take on a prima facie superficial examination of the grounds of appeal, which may also point out that ends of justice require the appeals to be entertained. In this view of the matter, we see that the substantial question of law that arises for decision in these appeals is as to whether the Tribunal had acted, in accordance with law, while it refused to condone the delay, at least on terms. On hearing the learned counsel for the parties on that particular issue of law, we are satisfied that the said question is a substantial question of law, and, has to be answered in favour of the appellant. In the result, these appeals are allowed and the impugned orders are set aside on condition that the appellant pays the Department an amount of `10,000/- (Rupees ten thousand only) as costs in each of these appeals within a period of two weeks from today, by making appropriate remittance. If such amounts are remitted, the Tribunal will take back the appeals and treat the applications for condonation of delay as having been allowed and proceed with ITA 194 & 195/13 -4- ITA Nos.123 and 124/Coch/2012, in accordance with law, after affording sufficient opportunity to the parties of being heard. Parties are directed to mark appearance before the Tribunal on 03.03.2014. (THOTTATHIL B.RADHAKRISHNAN, JUDGE) (A.MUHAMED MUSTAQUE, JUDGE) jg "