Wp(C)/14992/2014 Of Kerala Tourism Infrastructure Limited v. The Assistant Commissioner Of Income Tax Circle 1 (1)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN TUESDAY, THE 24TH DAY OF JUNE 2014/3RD ASHADHA, 1936 WP(C).No. 14992 of 2014 (Y) ---------------------------- PETITIONER(S): ------------ KERALA TOURISM INFRASTRUCTURE LIMITED, 4TH FLOOR, VIPANCHIKA TOWERS, TC-24/588(6), GOVT. GUEST HOUSE JUNCTION, THYCAUD, TRIVANDRUM-695 014. REPRESENTED BY ITS MANAGING DIRECTOR MR.ANIL KUMAR. BY ADVS.SRI.JOSEPH MARKOSE (SR.) SRI.V.ABRAHAM MARKOS SRI.BINU MATHEW SRI.TOM THOMAS (KAKKUZHIYIL) SRI.ABRAHAM JOSEPH MARKOS SRI.ABRAHAM VARGHESE THARAKAN RESPONDENT(S): --------------- 1. THE ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE 1 (1),TRIVANDRUM-695 003.TRIVANDRUM-695 003. 2. THE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, KENDRIYA BHAVAN, KAKKANAD,COCHIN-682 037. BY SRI.JOSE JOSEPH, SC, FOR INCOME TAX. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONER(S)' EXHIBITS : RESPONDENT(S)' EXHIBITS: NIL. /true copy/ K. VINOD CHANDRAN, J. ===================== W.P.(C) No. 14992 of 2014======================Dated this the 24[th] day of June, 2014 J U D G M E N T The petitioner, admittedly a Government Company,did not file an appeal from Ext.P3 order of the Income TaxAppellate Tribunal, which was dated 13.03.2009. Thepetitioner contends that Ext.P3 was passed without hearingthe counsel for the appellant/petitioner. In the present WritPetition, the petitioner assails the rejection of threemiscellaneous applications filed, for all the threeassessment years; for recalling the order passed andconduct a re-hearing after restoring the appeal. Themaintainability of such a prayer under Rule 24 and 25, itselfis feeble, considering the delay occassioned. 2. Ext.P3, relates to three assessment years, being1999-2000, 2000-01 and 2002-03, insofar as the apealsfiled by the petitioner/assessee and four appeals filed by theDepartment. There is no dispute that the counsel, who W.P.(C) No. 14992 of 2014 was entrusted with the appeal, passed away before theorder was issued. However, even according to thepetitioner, the appeal was heard on 13.03.2009 and theCounsel expired on 26.12.2008. No appeal was also filedfrom Ext.P3, nor was an application filed before theTribunal seeking a hearing on the issues raised in theappeal memorandum, immediately thereafter. Later on, theassessee filed three miscellaneous applications before theTribunal, seeking a re-hearing of the appeal, which weredated 05.04.2013, after expiry of four years from the date ofthe common order. 3. On going through Ext.P5 series of applications, theonly reason stated is that, the counsel was indisposed onaccount of serious illness and later on passed away andhence the appeals were not attended to. The assessee alsoclaims that such circumstance was beyond the control ofthe assessee. Definitely, the non appearance of the assesseeor his representative or a counsel on the date of hearingwas not beyond the control of the assessee. The Counsel W.P.(C) No. 14992 of 2014 passed away three months before the appeal was taken upand a diligent litigant should have followed up the matter.In any event, the death of the Counsel before the matterwas heard does not explain the circumstance of thepetitioner/assessee having slept over the matter for anotherfour years. 3. On going through Ext.P5 series of applications, theonly reason stated is that, the counsel was indisposed onaccount of serious illness and later on passed away andhence the appeals were not attended to. The assessee alsoclaims that such circumstance was beyond the control ofthe assessee. Definitely, the non appearance of the assesseeor his representative or a counsel on the date of hearingwas not beyond the control of the assessee. The Counsel W.P.(C) No. 14992 of 2014 passed away three months before the appeal was taken upand a diligent litigant should have followed up the matter.In any event, the death of the Counsel before the matterwas heard does not explain the circumstance of thepetitioner/assessee having slept over the matter for anotherfour years. 4. The assessee had filed a letter dated 23.09.2013before the Tribunal, which was filed in support and makingadditional averments, with respect to the explanation forthe delay occassioned. The Tribunal extracted the same, inExt.P6 order, and what is relevant is that the assesee had,in the said letter, admitted to the fact that there was aconscious decision taken, not to file an appeal from theorder of the Tribunal. That is available in paragraph 3 ofthe letter, which is extracted in Ext.P6 order. The saidreason has some nexus with the merits of the appeal. Anincidental peep into the merits show that, the assessee hadderived some income from a property, which they claimedas “income from business”. The claim was declined by the W.P.(C) No. 14992 of 2014 Assessing Officer who treated it as “income from othersources”. The assessee filed a first appeal and the 1[st]Appellate Authority found that the same is, “income fromhouse property”. The assessee being aggrieved by thefindings of the appellate authority filed a further appealbefore the Income Tax Appellate Tribunal, which wasdisposed of by Ext.P3 reversing the order in appeal andrestoring that of the Assessing Officer. A conscious decisionwas taken not to file an appeal, since, whether it be “incomefrom business” or “income from other sources”, theassessee's exigibility to tax would be the same. 5. The learned Senior Counsel points out that in thecircumstance of the income being treated as “income fromother sources”, the assessee would not be entitled to manyof the deductions, which are allowable under the head“business income”. What comes out from the abovestatement of facts is that, the aseessee was earlier of theopinion that no appeal need be filed from the order of theTribunal, but later on changed their opinion and for the W.P.(C) No. 14992 of 2014 purpose of claiming deductions, decided to file an appeal.Obviously the change in opinion was motivated by theorders dated 31.01.2013, produced as Ext.P4 series; whichgave effect to the Income Tax Appellate Tribunal's order.That however, cannot be a sufficient reason for the longdelay occasioned in challenging, Ext.P3 order. For all theabove reasons, the Tribunal cannot be faulted for havingrefused to exercise discretion to condone the delay of morethan 4 years. This Court finds no circumstance to persuadean interference there with. The Writ Petition hence is dismissed. No costs. K. VINOD CHANDRAN,JUDGE SB