Ita/1500/2009 Of Commissioner Of Income Tax, Kottayam v. Dr.george Philips Modayil, Karukachai

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.VINOD CHANDRAN WEDNESDAY, THE 23RD NOVEMBER 2011 / 2ND AGRAHAYANA 1933 ITA.No. 1500 of 2009() ---------------------- AGAINST ORDER DATED 08/05/2003 IN ITA.394/1998 of I.T.A.TRIBUNAL,COCHIN BENCH .................... APPELLANT/APPELLANT --------------------------------------- THE COMMISSIONER OF INCOME TAX, KOTTAYAM. BY ADV. SRI.P.K.R.MENON,SR.COUNSEL, GOI(TAXES) SRI.GEORGE K. GEORGE, SC FOR IT SRI.JOSE JOSEPH, SC, FOR INCOME TAX RESPONDENT(S): RESPONDENT ------------------------- DR.GEORGE PHILIP MADAYIL, KARUKACHAL. THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 23/11/2011, ALONG WITH ITA NOS.1501, 1503, 1511, 1512, 1523, 1524, 1587, 1597 & 1601 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ITA NO.1500/2009 APPENDIX APPELLANT'S EXHIBITS ANNEXURE-A :COPY OF RE-ASSESSMENT ORDER OF THE ASSESSING OFFICERDATED 31/03/1997. ANNEXURE-B :COPY OF ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS) DATED 30/06/1998. ANNEXURE-C :COPY OF ORDER OF THE APPELLATE TRIBUNAL DATED08/05/2003. ANNEXURE-D :ANNEXURE-E : COPY OF PANCHANAMA. COPY OF SWORN STATEMENT UNDER SECTION 132(4). //TRUE COPY// jg PA TO JUDGE. C.N.RAMACHANDRAN NAIR & K.VINOD CHANDRAN, JJ. ....................................................................C.M.Appln.No.442/2011, I.A.Nos.2072 & 2073 of 2011 in ITA No.1500/2009, C.M.Appln.No.458/2011, I.A.Nos.2152 & 2153 of 2011 in ITA No.1501/2009, C.M.Appln.No.459/2011, I.A.Nos.2154 & 2155 of 2011 in ITA No.1503/2009, C.M.Appln.No.460/2011, I.A.Nos.2156 & 2157 of 2011 in ITA No.1511/2009, C.M.Appln.No.469/2011, I.A.Nos.2197 & 2198 of 2011 in ITA No.1512/2009, C.M.Appln.No.438/2011, I.A.Nos.2035 & 2036 of 2011 in ITA No.1523/2009, C.M.Appln.No.443/2011, I.A.Nos.2074 & 2075 of 2011 in ITA No.1524/2009, C.M.Appln.No.444/2011, I.A.Nos.2076 & 2077 of 2011 in ITA No.1587/2009, C.M.Appln.No.461/2011, I.A.Nos.2158 & 2159 of 2011 in ITA No.1597/2009, C.M.Appln.No.445/2011, I.A.Nos.2078 & 2079 of 2011 in ITA No.1601/2009, ITA Nos. 1500, 1501, 1503, 1511, 1512, 1523, 1524, 1587, 1597 & 1601 of 2009 .................................................................... Dated this the 23[rd] day of November, 2011. J U D G M E N T Ramachandran Nair, J. The connected Income Tax Appeals filed against the same assessee are against common orders of the Tribunalsetting aside reassessments completed under Section 147 ofthe Income Tax Act. The appeals were filed on 03/11/2003 ITA Nos.1500/2009 & connected cases and on account of delay in payment of court fee, the appealsremained defective for several years in this Court. Theassessee died soon after filing the appeals i.e. on09/02/2004. The appellant Department has now filedapplications to set aside abatement and also for impleadingthe legal heir, who is the widow of the deceased assessee, whowas a doctor. Delay is more than 2600 days. 2.During hearing of the delay condonation petitionsand applications for setting aside the abatement and forimpleading the legal heir, we have gone through the orders ofthe Tribunal. The Tribunal has found that the basis ofreassessment is materials gathered and statements recordedduring search. The finding of the Tribunal is that search wasnot conducted in the presence of witnesses as required underthe Rules and in fact the statement recorded is not signed bythe witnesses. The assessee filed an affidavit denying thepresence of witnesses during search and inspite of the same,no opportunity was given to the assessee to cross examine thewitnesses. Even though the Revenue's contention that the ITA Nos.1500/2009 & connected cases ITA Nos.1500/2009 & connected cases Tribunal's orders on technical ground warrant interferencemay require detail consideration, what we feel is that theassessments are for the years 1985-86 to 1994-95. Theassessee died 7 years back and it is now for the assessee'swidow who obviously is an aged lady to defend the case. If atall the appeals are allowed, the matter has to be againremanded back to the Tribunal. We do not think the widow atthis distance of time will be able to even effectively defend thematter. We, therefore, decline to condone the delay in filingthe applications for setting aside the abatement. Therefore, all the C.M.Applications and all the I.A.s filedare dismissed. Consequently, the connected I.T.Appeals filedby the Revenue are also dismissed. (C.N.RAMACHANDRAN NAIR, JUDGE) (K.VINOD CHANDRAN, JUDGE)