Wa/951/2014 Of P.j.bessy v. Income Tax Appellate Tribunal

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC &THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU WEDNESDAY, THE 20TH DAY OF AUGUST 2014/29TH SRAVANA, 1936WA.No. 951 of 2014 () IN WP(C).28795/2013 ------------------------------------------- (AGAINST THE ORDER/JUDGMENT IN WP(C) 28795/2013 of HIGH COURT OFKERALA DATED 17-06-2014)APPELLANT(S)/PETITIONER:-:-------------------------- P.J.BESSY, (PAN NO. ), NEDUMPARAMBIL HOUSE, GLORY BHAVAN, THRISSUR DISTRICT, KERALA STATE. BY ADVS.SRI.M.UNNIKRISHNA MENON SRI.C.CHANDRASEKHARAN RESPONDENT(S)/RESPONDENTS:-: ----------------------------- 1. INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, COCHIN, REPRESENTED BY ASST. REGISTRAR INCOME - TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN - 682 016. 2. THE INCOME - TAX OFFICER, WARD-2(1), CIRCLE 1, THRISSUR - 678 001. R BY SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 20-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC & DAMA SESHADRI NAIDU, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -W.A.No. 951 OF 2014- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -Dated this the 20[th]day of August , 2014 Antony Dominic,J. JUDGMENT This appeal is filed against the judgment of the learned SingleJudge dismissing W.P.(C) No.28795/2013 filed by the appellant. The appellant was a partner of a firm named M/s. MamataMotels,Thrissur, along with 14 other persons. The Motel along withthe land and the building was sold. However, the assessee did notreturn any income towards capital gains arising from the transfer ofthe property. This resulted in Ext.P1 order of assessment. The Firstappeal filed before the Commissioner of Income Tax(Appeals) wasdismissed by Ext.P2 order. Long thereafter, the appellant filedExt.P3 appeal before the Tribunal with a delay of 6 years 8 monthsand 3 days. That was rejected by Ext.P7 order on the ground ofdelay. It is thereafter, the writ petition was filed contending thatthe Tribunal had allowed the appeals filed by ten other partners videExt.P8 order and that therefore, the assessment should be revisedin the light of Ext.P8 or the Tribunal should hear the appeal onmerits. The appellant also prayed for consequential benefits. Thelearned Single Judge dismissed the writ petition taking the view that the assessment order has become final and it is this judgmentwhich is under challenge before us. 2. It is true that until an assessment order is varied inaccordance with law, the order continues to be in force and binding onthe assessee. In that view of the matter, the learned Single Judge isjustified in his conclusion also. However, facts of the case would showthat the other partners of the firm, in which the appellant also was apartner, got the assessment order passed against them nullified byvirtue of Ext.P8 order passed by the Tribunal. The Department doesnot have a case that the case of the appellant is in any mannerdifferent from the other partners. In such a situation, there is noreason that, on the only ground that the appellant filed appealbelatedly, she should be fastened with the tax liability which in lawcould not have been fastened on her. In such circumstances, justicedemands that the appellant should also be given the benefit of Ext.P8appellate order passed by the Tribunal in favour of the other partnersof the firm. Therefore we are inclined to set aside the judgment of thelearned Single Judge and dispose of the writ appeal itself with adirection to the 2[nd] respondent to revise Ext.P1 order of assessmentpassed against the appellant in the light of Ext.P8 order passed by the Therefore we are inclined to set aside the judgment of thelearned Single Judge and dispose of the writ appeal itself with adirection to the 2[nd] respondent to revise Ext.P1 order of assessmentpassed against the appellant in the light of Ext.P8 order passed by the Appellate Tribunal. This shall be done, as expeditiously as possible, atany rate, within two months of production of a copy of this judgment.The appellant will also be entitled to consequential benefits. Needlessto say that when consequential orders are passed, the assessee willnot be entitled any interest on any amount due to be refunded to her. Writ Appeal is disposed of. Sd/- ANTONY DOMINIC , JUDGE . Sd/- DAMA SESHADRI NAIDU, JUDGE. dpk /True copy/