Rp/721/2012 Of Mrs. Thankamma Baby v. Commissioner Of Income Tax(Central)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 27TH DAY OF SEPTEMBER 2012/5TH ASWINA 1934 RP.No. 721 of 2012 ( ) IN ITA/12/2010 --------------------------------------AGAINST THE JUDGMENT IN ITA.12/2010 DATED 06-01-2011 REVIEW PETITIONER/NOT A PARTY IN ITA: -------------------------------------- MRS. THANKAMMA BABY, 15/560, MARY SADANAM, THURUTHIKKADU PO, MALLAPPALLY TALUK PATHANAMTHITTA DISTRICT. BY ADVS.SRI.P.HARIDAS SMT.S.SIKKY SMT.LIJI KUTTAPPAN RESPONDENTS/APPELLANT & RESPONDENTS:-------------- 1. COMMISSIONER OF INCOME TAX(CENTRAL) (CENTRAL) KOCHI 682 018. 2. M/S.T.O.ABRAHAM & CO.(DISSOLVED), ENGINEERS AND CONTRACTORS,THURUTHIKADU PO THIRUVALLA 695 597. 3. T.O.ABRAHAM,THOTTATHIL PUTHENPURA, URUMBIKUNNEL,THURUTHIKADU,KALLOOPPARA MALLAPPALLY TALUK,PATHANAMTHITTA DISTRICT 689 583. BY SRI.P.K.R.MENON(SR.), SC FOR INCOME TAX SRI.JOSE JOSEPH, SC FOR INCOME TAX THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ALONG WITHI.T.A. NO.162/2012 ON 27-09-2012, THE COURT ON THE SAME DAY PASSED THEFOLLOWING: ANNEXURE A: TRUE COPY OF NOTICE GIVEN TO THE DEPARTMENT BY THEPETITIONER THROUGH INTIMATION DT.5.10.2004. ANNEXURE B: TRUE COPY OF PUBLIC NOTICE ISSUED IN DESHABHIMANI DAILYDT.13.10.2004. TRUE COPY P.S. TO JUDGE C.N.RAMACHANDRAN NAIR, &M.L.JOSEPH FRANCIS, JJ. ................................................................................ R.P. No.721 of 2012 in I.T.A. No.12 of 2010 &I.T.A. No.162 of 2012 ................................................................................ Dated this the 27[th] day of September, 2012. ORDER Ramachandran Nair, J. Review Petition is filed to review judgment in the Writ Appealwhereunder we upheld the assessment as made within time and notbarred by limitation. Review petitioner's grievance is that she aspartner of the dissolved firm is facing recovery proceedings forrecovery of arrears of tax due from the dissolved firm. Senior counselfor the respondent referred to Section 189 and submitted that for thepurpose of proceedings under the Income Tax Act, the dissolved firmshall deem to be continuing for all purposes. We do not think there isany need to consider whether after dissolution of the firm every partnerof the dissolved firm is entitled to notice or not because in this case thefirm was represented by a managing partner and so long as limitation isconcerned, we decided the case on merit through detailed judgment.Nothing stops the review petitioner from filing leave to file before the RP 721/2012 & ITA 162/2012 Supreme Court, if she has any grievance against the judgment.However, we feel review petitioner is entitled to limited relief in theconnected appeal I.T.A. No.162/2012 which is filed by her against theorder of the Tribunal passed after remand by this court vide judgmentunder review i.e. in I.T.A. No.12/2010. 2. It is seen that even after remand, Tribunal had disposed of theappeal exparte, probably because the managing partner who wasrepresenting the firm has lost interest as recovery is not against him butis stated to be against the appellant in the I.T.A. Since appellant wasnot party before the Tribunal and since the case is decided by theTribunal on merit without hearing any of the partners of the dissolvedfirm, we feel one opportunity can be given to the appellant to representthe case on merit before the Tribunal. We make it clear that thejudgment shall be treated as final as far as question of limitation isconcerned because on the issue decided we do not find any ground toreview the judgment. However, with regard to the income assessed,appellant can argue the case on merit i.e., on the amount assessedbefore the Tribunal. We, therefore, dismiss the Review Petition withthe above observations and allow I.T.A. No.162/2012 by setting aside RP 721/2012 & ITA 162/2012 RP 721/2012 & ITA 162/2012 the order of the Tribunal and by remanding the matter for giving anopportunity to the appellant to represent the matter in appeal. Therewill be direction to the department to furnish current address of all theother partners of the dissolved firm to the Tribunal to be individuallyimpleaded and to issue notice to each of them so that another round ofappeal should not reach this court on same ground of non-inclusion ofmembers of the dissolved firm as parties in appeal. There will bedirection to the Tribunal to hear the appellant in I.T.A. No.162/2012and other partners of the dissolved firm and dispose of the appeal onmerits within a period of three months from date of receipt of copy ofthis judgment. The appellant shall not seek any adjournment before theTribunal when the case is posted for disposal after impleading the otherpartners of the firm. C.N.RAMACHANDRAN NAIRJudge M.L.JOSEPH FRANCISJudge