Ita/194/2013 Of Usha Johnson v. The Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL 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 MARUTHAYATH TRANSPORTS) MARUTHAYATH 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: ON 05-02-2014, ALONG WITH ITA.NO. 195/2013, THE COURT 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.COMMISSIONER UNDER SECTION 263 OF THE INCOME TAX ACT. ANNEX.B:COPY OF THE PROCEEDINGS BEARING NO.IAP/W-4/KLM/2011-12, DTD. 28/06/2011.2011-12, 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.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 INPREFERRING THE APPEAL.APPELLANT FOR CONDONING THE DELAY OF 340 DAYS INPREFERRING THE APPEAL. ANNEX.E:COPY OF THE COMMON ORDER PASSED IN ITA NOS.123 AND 124/COCH/2012 ON 26/04/2013.124/COCH/2012 ON 26/04/2013. RESPONDENT'S ANNEXURES:N I L /TRUE COPY/ P.A.TO JUDGE THOTTATHIL B.RADHAKRISHNAN & A.MUHAMED MUSTAQUE, JJ. .................................................................... I.T.A.Nos.194 & 195 of 2013 .................................................................... Dated this the 5[th] 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 theIncome Tax Appellate Tribunal on ground of delay after holdingthat the cause shown for condonation of delay in both thoseappeals are not satisfactory. Income Tax Appellate Tribunal on ground of delay after holdingthat the cause shown for condonation of delay in both thoseappeals are not satisfactory. 2.These appeals are by the same person, a woman, who pleadedthat she is undergoing treatment for Diabetes Mellittus and alliedproblems as to numbness, low back pain, etc. and was unaware ofthe fact that orders impugned before the Tribunal were issued.that she is undergoing treatment for Diabetes Mellittus and alliedproblems as to numbness, low back pain, etc. and was unaware ofthe fact that orders impugned before the Tribunal were issued. 3.Heard the learned counsel for the appellant and the learnedStanding Counsel for the Income Tax Department in the light ofthe materials and the averments in the applications forcondonation of delay. We have also looked into the substance ofStanding Counsel for the Income Tax Department in the light ofthe materials and the averments in the applications forcondonation of delay. We have also looked into the substance of ITA 194 & 195/13 the appeals as placed for consideration of the Tribunal, on theirmerits. 3.Heard the learned counsel for the appellant and the learnedStanding Counsel for the Income Tax Department in the light ofthe materials and the averments in the applications forcondonation of delay. We have also looked into the substance ofStanding Counsel for the Income Tax Department in the light ofthe materials and the averments in the applications forcondonation of delay. We have also looked into the substance of ITA 194 & 195/13 the appeals as placed for consideration of the Tribunal, on theirmerits. 4.The fundamental question that appears to be raised in theappeals before the Tribunal was as to whether the transactions ofthe appellant with M/s. Bharat Petroleum Corporation Limited andM/s. Indian Oil Corporation Limited are transactions under whichthe appellant could be treated as providing vehicles for hire(tanker lorries to carry materials) or whether the appellant wasemploying herself as a carrier. This distinction may be relevant tomake the choice as to the rate of depreciation that has to beapplied in terms of the Income Tax Rules. We clarify that we arenot expressing finally on that.appeals before the Tribunal was as to whether the transactions ofthe appellant with M/s. Bharat Petroleum Corporation Limited andM/s. Indian Oil Corporation Limited are transactions under whichthe appellant could be treated as providing vehicles for hire(tanker lorries to carry materials) or whether the appellant wasemploying herself as a carrier. This distinction may be relevant tomake the choice as to the rate of depreciation that has to beapplied in terms of the Income Tax Rules. We clarify that we arenot expressing finally on that. 5.It is not as if the appellant had not shown any cause at all tocondone the delay. The sufficiency or otherwise in such mattershave necessarily to be weighed also, on the scales of justice,depending upon the question whether the delay could becondoned at least on terms. This largely depends on the causecondone the delay. The sufficiency or otherwise in such mattershave necessarily to be weighed also, on the scales of justice,depending upon the question whether the delay could becondoned at least on terms. This largely depends on the cause ITA 194 & 195/13 pleaded for the delay and the view that the appellate court,tribunal or authority could take on a prima facie superficialexamination of the grounds of appeal, which may also point outthat ends of justice require the appeals to be entertained. In thisview of the matter, we see that the substantial question of lawthat arises for decision in these appeals is as to whether theTribunal had acted, in accordance with law, while it refused tocondone the delay, at least on terms. On hearing the learnedcounsel for the parties on that particular issue of law, we aresatisfied 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 ordersare set aside on condition that the appellant pays the Departmentan amount of `10,000/- (Rupees ten thousand only) as costs ineach of these appeals within a period of two weeks from today, bymaking appropriate remittance. If such amounts are remitted, theTribunal will take back the appeals and treat the applications forcondonation 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 on03.03.2014. (THOTTATHIL B.RADHAKRISHNAN, JUDGE) jg (A.MUHAMED MUSTAQUE, JUDGE)