Wp(C)/21307/2010 Of M/S K.h.traders, Pattambi v. The Commissioner Of Income Tax,Thrissur

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC WEDNESDAY, THE 9TH DAY OF JANUARY 2013/19TH POUSHA 1934 WP(C).No. 21307 of 2010 (K) --------------------------- PETITIONER(S):------------- M/S.K.H.TRADERS, MAIN ROAD,PATTAMBI, PALAKKD DISTRICT, REP.BY ITS MANAGING PARTNER SHRI.K.H.SAKEER ALI. BY ADVS.SRI.T.M.SREEDHARAN SMT.C.K.SHERIN SRI.V.P.NARAYANAN. RESPONDENT(S): -------------- 1. THE COMMISSIONER OF INCOME TAX, AAYAKAR BHAVAN, SAKTHAN THAMPURAN NAGAR, THRISSUR - 680001. 2. THE INCOME TAX OFFICER, WARD-2, PALAKKAD. 3. THE TAX RECOVERY OFFICER (TRO) PALAKKAD – 678 683. BY ADVS. SRI.P.K.R.MENON,SENIOR COUNSEL, GOI(TAXES) & SRI.JOSE JOSEPH, SC, FOR INCOME TAX. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON09-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS:- EXT.P1:TRUE COPY OF THE ASSESSMENT ORDER DATED 27-01-2003 PASSED BY THE SECOND RESPONDENT.PASSED BY THE SECOND RESPONDENT.EXT.P2:TRUE COPY OF THE REVISION PETITION ALONG WITH THE PETITION FOR CONDONATION OF DELAY AND THE AFFIDAVIT SUBMITTED BEFORE THE FIRST RESPONDENT.PETITION FOR CONDONATION OF DELAY AND THE AFFIDAVIT SUBMITTED BEFORE THE FIRST RESPONDENT.EXT.P3:TRUE COPY OF THE SALES TAX ASSESSMENT ORDER FOR THE YEAR ENDED 31-3-2000 (1900-00) DATED 31-5-2002 PASSED BY THE ADDL.SALES TAX OFFICER, PATTAMBI.YEAR ENDED 31-3-2000 (1900-00) DATED 31-5-2002 PASSED BY THE ADDL.SALES TAX OFFICER, PATTAMBI.EXT.P4:TRUE COPY OF NOTE DATED 19-3-2010 SUBMITTED BY THE COUNSEL BEFORE THE FIRST RESPONDENT.COUNSEL BEFORE THE FIRST RESPONDENT.EXT.P5:TRUE COPY OF THE NOTE DATED 22-3-2010 SUBMITTED BY THECOUNSEL BEFORE THE FIRST RESPONDENT.COUNSEL BEFORE THE FIRST RESPONDENT.EXT.P6:TRUE COPY OF THE ORDER DATED 29-3-2010 PASSED BY THE FIRST RESPONDENT.FIRST RESPONDENT. RESPONDENT'S EXHIBITS :NIL. //TRUE COPY// P.A TO JUDGE ANTONY DOMINIC,J -------------------------------- W.P.(C)No.21307 of 2010 ------------------------------------- Dated this the 9[th]day of January, 2013 JUDGMENT Petitioner is an assessee under the Income Tax Act. By Ext.P1, assessment for the year 2000-2001 wascompleted. Against that order, the petitioner filed anappeal with an application to condone delay of 2 years, 10months and 8 days. It appears that petition to condonedelay was posted on three occasions and despite notice,the petitioner did not appear before the appellateauthority. By order dated 28.03.2007, the appellateauthority declined to condone delay and dismissed theappeal. 2. Subsequently, the petitioner filed Ext.P2 revisionunder Section 264 of the Income Tax Act. Along with therevision, the petitioner also filed an application to condonedelay of 4 years, 9 months and 29 days. The revisionalauthority rejected the revision by Ext.P6 order. In this W.P.(C).No.21307 of 2010 order, the revisional authority has dealt with themaintainability of the revision, the tenability of the requestfor condonation of delay and also the merits of the revisionitself. On all these grounds, it has been decided againstthe petitioner. It is challenging this order, the writ petitionis filed. 3. I heard the learned counsel for the petitioner andthe learned standing counsel appearing for respondents. 4. In my view, if the maintainability of the revision isto be upheld, it is unnecessary to examine the correctnessof the findings of the revisional authority on the other twoissues. 5. Insofar as the finding on the maintainability of therevision is concerned, the finding has been arrived at onthe basis of Section 264(4) of the Income Tax Act. 6. Section 264(4) of the Income Tax Act reads thus: The Commissioner shall not revise any orderunder this section in the following cases: 3. I heard the learned counsel for the petitioner andthe learned standing counsel appearing for respondents. 4. In my view, if the maintainability of the revision isto be upheld, it is unnecessary to examine the correctnessof the findings of the revisional authority on the other twoissues. 5. Insofar as the finding on the maintainability of therevision is concerned, the finding has been arrived at onthe basis of Section 264(4) of the Income Tax Act. 6. Section 264(4) of the Income Tax Act reads thus: The Commissioner shall not revise any orderunder this section in the following cases: (a) Where an appeal against the order lies tothe Deputy Commissioner(Appeals) or tothe Commissioner(Appeals) or to theAppellate Tribunal but has not been madeand the time within which such appealmay be made has not expired or, in thecase of an appeal to the Commissioner(Appeals) or to the Appellate Tribunal, theassessee has not waived his right ofappeal; orthe Deputy Commissioner(Appeals) or tothe Commissioner(Appeals) or to theAppellate Tribunal but has not been madeand the time within which such appealmay be made has not expired or, in thecase of an appeal to the Commissioner(Appeals) or to the Appellate Tribunal, theassessee has not waived his right ofappeal; or (b) where the order is pending on an appealbeforetheDeputyCommissioner(Appeals); orbeforetheDeputyCommissioner(Appeals); or (c) where the order has been made thesubject of an appeal to the Commissioner(Appeals) or to the Appellate Tribunal.subject of an appeal to the Commissioner(Appeals) or to the Appellate Tribunal. 7. Reading of this provision shows that the power of revision can be exercised by the revisional authority only ifthe conditions specified in the Section are satisfied. 8. Clause(c) states that where an order has been made the subject of an appeal, the Commissioner shall notrevise the order. The question is whether Ext.P1 order has W.P.(C).No.21307 of 2010 been subject to an appeal to the Commissioner(Appeals).As already stated, the petitioner had filed an appeal to theCommissioner(Appeals) with an application to condonedelay of 2 years, 10 months and 8 days. TheCommissioner declined to condone delay and on thatbasis, dismissed the appeal on 28.03.2007. Contentionraised by the petitioner is dismissal of an appeal withoutcondoning delay is not dismissal of the appeal andtherefore, Clause(c) does not stand in their way. 9. On the other hand, relying on the judgment of the Apex Court in Mela Ram and Sons v. Commissioner ofIncome Tax, Punjab (29 ITR 607),the counsel for theRevenue contended that the petitioner had not waivedtheir right to file an appeal and the order dated28.03.2007 dismissing the appeal without condoning thedelay is an order in the appeal. Therefore, according tohim, the remedy of revision was not available to thepetitioner. W.P.(C).No.21307 of 2010 10. In the judgment in Mela Ram's case relied on bythe Revenue, an appeal was dismissed without condoningdelay and th question was considered whether such anorder is an order in the appeal. In this judgment, afterreferring to the conflicting judgments of various HighCourts and the previous judgment of the Apex Court, theApex Court finally concluded thus: “On the principles laid down in these decisions, it must be held that an appealpresented out of time is an appeal, and anorder dismissing it as time-barred is one passedin appeal.” In the light of this binding precedent, there is no escape from the conclusion that the order dated28.03.2007 dismissing the appeal filed by the petitioner isan order in the appeal filed by the petitioner. Once, it is soheld as a necessary consequence, I must also hold that thepetitioner has not waived his appellate right, to maintainan application for revision under Section 264 of the Act. If “On the principles laid down in these decisions, it must be held that an appealpresented out of time is an appeal, and anorder dismissing it as time-barred is one passedin appeal.” In the light of this binding precedent, there is no escape from the conclusion that the order dated28.03.2007 dismissing the appeal filed by the petitioner isan order in the appeal filed by the petitioner. Once, it is soheld as a necessary consequence, I must also hold that thepetitioner has not waived his appellate right, to maintainan application for revision under Section 264 of the Act. If that be so, the finding of the revisional authority that inview of Section 264(4), the revision filed by the petitionerwas not maintainable, has to be upheld. If that be so, it isunnecessary to enter into the correctness of the otherfindings of the revisional authority, the writ petitiontherefore, fails and it is dismissed. ln Sd/- ANTONY DOMINIC, JUDGE