Ita/1429/2009 Of The Commissioner Of Income Tax, Cochin v. Shri.v.m.varghese

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 BENCHDATED 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.356/2016and I.T.A.No. 1429 of 2009 ------------------------------------------- Dated this the 23[rd] day of May, 2018 ORDER/JUDGMENT Vinod Chandran, J. The preliminary question raised is to whether the appeal hasto be heard on merits since by reason of the death of the assessee,there is abatement of the above appeal. The Revenue has filed anapplication for setting aside the abatement, condonation of delay of3345 days, as also impleading the counter-petitioner, the legal heirof the assesee as additional respondent. The additional respondentnow sought to be impleaded is the son of the deceased assessee.The reasons stated in the affidavit accompanying the application forsetting aside the abatement and condonation of delay are that theappellant-Commissioner of Income Tax, Kochi was not aware of thedeath of the respondent. Only when the notice issued to therespondent from this Court could not be served, the death of therespondent-assessee was brought to the notice of the Commissioner and immediately thereafter, the aforesaidapplications were filed. 2.A counter-affidavit has been filed by the son of theassessee, who is sought to be impleaded. Annexure R(1)(a) is anapplication filed before the Chief Commissioner of Income Tax,Kochi by the son of the deceased seeking waiver of interest leviedunder Section 220(2A) for the block assessment, which is dated02-02-2011. Annexure R(1)(b) is a letter addressed by the TaxRecovery Officer specifically raising a demand on giving effect to theTribunal's order dated 03-10-2002, which is challenged in theabove appeal. The said demand is dated 28-01-2013. The demandhas been raised on the wife of the assessee, showing the assesseeas deceased. These communications make it clear that theDepartment was aware of the death of the assessee long before theendorsement on notice issued by this Court was received back. Theimpleading 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, Kochiand the Annexures produced along with the counter-affidavit are 3.The learned Standing Counsel for the Revenue submits that the appeal is filed by the Commissioner of Income Tax, Kochiand the Annexures produced along with the counter-affidavit are with respect to different officers. We are of the opinion that theRevenue cannot take such a contention, especially in the context ofTax Recovery Officer having send a communication to the wife ofthe deceased assessee specifically giving effect to the order of theITAT, which is challenged here. The Tax Recovery Officer wouldnecessarily have, before giving effect to the order, enquired aboutthe further proceedings taken on the basis of the order of the ITATand this appeal itself was filed in the year 2003. Notice was issuedonly in the year 2009 for reason of the appeals having not beennumbered for reason of the challenge raised to the court feesapplicable by way of amendment of the Kerala Court Fees and SuitsValuation Act. However, the appeals were filed in time and waspending before this Court unnumbered till 2009 and thereafternumbered. In the year 2013, the Tax Recovery Officer hasimplemented the order and had communicated the demand to thewife of the deceased assessee. The Department ought to havetaken up the proceedings for setting aside the abatement andcondonation of delay, if at all, within a reasonable period fromAnnexure R(1)(a) or R(1)(b). We do not see any explanation for the gross delay caused. The applications hence would stand rejected and as a consequence, the appeal is dismissed as abated, leavingthe question of law to be considered in appropriate proceedings. Sd/-K. VINOD CHANDRANJudge dkr Sd/-ASHOK MENONJudge