Ita/43/2014 Of Avara Haji v. The Income Tax Appellate Tribunal

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE WEDNESDAY, THE 9TH DAY OF APRIL 2014/19TH CHAITHRA, 1936 ITA.No. 43 of 2014 () ---------------------- I.T.A.NO.483/COCH/2010 OF INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, COCHIN --------------------------------- APPELLANT/APPELLANT/ASSESSE : ----------------------------------------------------- K.AVARA HAJI, AGED 65 YEARS, KATTUKANDAN HOUSE, KULIKKILIYAD P.O., KOTTAPURAM, PALAKKAD DISTRICT. BY ADV. SRI.C.K.RAMAKRISHNAN RESPONDENT(S): ---------------------------- 1. THE INCOME TAX APPELLATE TRIBUNAL, ERNAKULAM -682 012. 2. THE OFFICE OF THE COMMISSIONER OF INCOME TAX (APPEALS), KOCHI. PIN-682 031 KOCHI. PIN-682 031 3. THE INCOME TAX OFFICER,WARD-2, PALAKKAD-678 001. R1 TO R3 BY SRI.JOSE JOSEPH, SC, INCOME TAX THIS INCOME TAX APPEAL HAVING COME UP FOR ADMISSION ON 09-04-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts I.T.A.NO.43/2014 APPENDIX PETITIONER'S ANNEXURES: ANNEX A1COPY OF THE ASSESSMENT ORDER BY THE I.T. OFFICER DATED 11/02/200411/02/2004 ANNEX A2COPY OF THE APPELLATE ORDER BY THE COMMISSIONER DATED 21/12/200621/12/2006 ANNEX A3COPY OF THE ORDER OF THE INCOME TAX APPELLATE TRIBUNAL IN I.T.A.NO.473 TO 477 DATED 23/02/2010I.T.A.NO.473 TO 477 DATED 23/02/2010 ANNEX A4COPY OF THE ORDER OF THE INCOME TAX APPELLATE TRIBUNAL IN I.T.A.NO.483 OF 2010 DATED 29/03/2012I.T.A.NO.483 OF 2010 DATED 29/03/2012 RESPONDENT'S ANNEXURES:NIL /TRUE COPY/ P.A.TO.JUDGE Manjula Chellur, C.J. & A.M. Shaffique, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - I.T.A. No. 43 OF 2014 - - - - - - - - - - - - - - - - - - - - - - - - - - - -Dated this the 9[th] day of April, 2014 Manjula Chellur, C.J. JUDGMENT Heard learned counsel for appellant as well as Standing Counsel for respondent Revenue. 2. This appeal is directed against order of appellate Tribunal dated 29.03.2012. Assessment year in question is1999-2000. ITA No.483 of 2010 on the file of appellateTribunal, Kochi, was filed with a delay of 1270 days. Reasonfor such delay came to be explained by filing affidavits dated13.08.2010 and 14.09.2010. As could be seen from recordsthe main cause seems to be back pain suffered by appellantand he was advised rest. According to him, he was unable towalk and he required continuous treatment. Therefore he wasnot able to approach Tribunal within the prescribed period oflimitation. Over and above this, he was not able to paylitigation expenses. 3. He approached High Court by filing W.P.(C)No.16414 of 2010 when he received a demand notice dated ITA No. 43 of 2014 -:2:- 31.03.2010. More or less, both the affidavits refer to his backpain and continuous treatment by an Ayurvedic Doctor. 4. So far as the assessment in question, challenge is to the completed assessment by way of best judgment underSection 144 of the Income Tax Act. He filed a revision petitionbefore the Commissioner under Section 264 of the Act and thepetition came to be dismissed. Challenging the same, he filedW.P.(C) No.7108 of 2005 before the High Court of Kerala andsame came to be allowed setting aside the orders passed underSection 264 of the Act with a direction to treat the revisionpetition as an appeal and dispose the same according to law.Pursuant to the order of High Court, Commissioner of Income Tax(Appeals) passed an order dated 21.12.2006. This order came tobe challenged before Appellate Tribunal with a delay of 1270days. 5. The issue which requires adjudication by us is, whether there was sufficient cause for the appellant not to fileappeal within the prescribed period of limitation and whether hehas properly explained delay of 1270 days. He had produced ITA No. 43 of 2014 5. The issue which requires adjudication by us is, whether there was sufficient cause for the appellant not to fileappeal within the prescribed period of limitation and whether hehas properly explained delay of 1270 days. He had produced ITA No. 43 of 2014 three certificates from “Mannarkkad Ayurvedic Clinic” whichindicate, between what period, he was under treatment on threeoccasions. 6. As could be seen from the period of treatment andcertificates, it was not continuous treatment and there was breakin between, and the break was not a short spell but duration of 6to 12 months. Even otherwise, none of the Certificates indicatedthat he was required to be admitted to hospital as in-patient. 7. As already stated above, when a demand notice was sent, W.P.(C) No.16414 of 2010 came to be filed before the HighCourt, and High Court dismissed the Writ Petition on 12.07.2010.Only after disposal of this Writ Petition, he filed the above appealwith delay of 1270 days. Tribunal, after referring to entirematerial on record and also contents of medical certificatesproduced, was justified in saying, the inordinate delay of 1270days is not explained with sufficient and convincing material andeven otherwise, the so called treatment at Ayurvedic Clinic wasnot as in-patient and there was enough time for petitioner toapproach Tribunal. Want of funds to make litigation cannot be a ITA No. 43 of 2014 -:4:- sufficient case. He was aware of entire proceedings and heapproached different authorities at different point of time. Healso approached High Court on more than one occasion. It is nota case where the petitioner was ignorant of what was happeningon account of his illness, but the entire situation now faced isonly on account of negligence in taking the matter before theappellate authority at the relevant point of time. We do not find any good ground to interfere with theorders of appellate Tribunal. Accordingly, the appeal is dismissed. Manjula Chellur, Chief Justice. A.M. Shaffique, Judge. ttb/09/04 ITA No. 43 of 2014