Wp(C)/28795/2013 Of P.j.bessy v. Asst.registrar Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN TUESDAY, THE 17TH DAY OF JUNE 2014/27TH JYAISHTA, 1936 WP(C).No. 28795 of 2013 (Y) ---------------------------------------- PETITIONER(S):---------------------- P.J.BESSY, (PAN , NEDUMPARAMBIL HOUSE, GLORY BHAVAN, THRISSUR DISTRICT, KERALA STATE. BY ADVS.SRI.M.UNNIKRISHNA MENON SRI.C.CHANDRASEKHARAN RESPONDENT(S):------------------------- 1. INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, COCHIN, REPRESENTED BY ASSISTANT REGISTRAR INCOME TAX APPELATE TRIBUNAL, COCHIN BENCH - 682 016. 2. THE INCOME TAX OFFICER, WARD - 2 (1), CIRLCE I, THRISSUR - 678 001. BY ADVS. SRI.P.K.R.MENON,SR.COUNSEL, GOI (TAXES) SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PJ WP(C).No. 28795 of 2013 (Y) ---------------------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXHIBIT-P1-TRUE COPY OF THE ASESSMENT ORDER DATED 13/03/2001 EXHIBIT-P2-TRTUE COPY OF THE APPELLATE ORDER DATED 08/03/2006. EXHIBIT-P3-TRUE COPY OF THE APPEAL ALONG WITH DELAY CONDONATION PETITION.PETITION. EXHIBIT-P4-TRUE COPY OF THE CHALLAN DATED 01/01/2006 FOR RS.79,70/- EXHIBIT-P5-TRUE COPY OF THE APPEAL BEFORE IST RESPONDENT DATED 02/02/2013.02/02/2013. EXHIBIT-P6-TRUE COPY OF THE CONDONATION DELAY PETITION ALONG WITH AFFIDAVIT DATED 02/02/2013.AFFIDAVIT DATED 02/02/2013. EXHIBIT-P7-TRUE COPY OF THE ORDER OF THE IST RESPONDENT DATED 10/07/2013.10/07/2013. EXHIBIT-P8-TRUE COPY OF THE ORDER OF THE IST RESPONDENT DATED 20/10/2006.20/10/2006. EXHIBIT-P9-TRUE COPY OF THE LETTER ISSUED BY THE PETITIONER TO THE 2NDRESPONDENT DATED 01/10/2013.RESPONDENT DATED 01/10/2013. RESPONDENT(S)' EXHIBITS --------------------------------------- R2(A):COPY OF LETTER DATED 1/10/13 R2(B):COPY OF THE LETTER DATED 7/11/13 R2(C):COPY OF THE RELEVANT PAGE OF THE DESPATCH REGISTER AS PER ENTRY NO.4843.ENTRY NO.4843. / TRUE COPY / P.S. TO JUDGE K. VINOD CHANDRAN, J - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P(C) No. 28795 of 2013 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17[th] day of June, 2014 J U D G M E N T The petitioner is aggrieved by the dismissal ofhis appeal as a consequence of the dismissal of the delaycondonation application. The appeal was filed with adelay of six years, eight months and three days. Thereason stated is that the petitioner had in fact, remittedthe appeal fees as evidenced by Ext.P4 Challan and hadalso despatched the same through courier. The order ofthe Tribunal impugned herein, being Ext.P7, however,refutes the receipt of such appeal at the office of theTribunal. The petitioner also, does not have anyacknowledgement, to prove that the same was receivedin the office of the Tribunal. The reasons stated forcondonation of the long delay of more than six years wasfound to be not satisfactory and the delay condonationapplication was dismissed by the Tribunal as per Ext.P7, WPC.28795/2013 which is impugned herein. 2. The learned counsel, admits, that there isabsolutely no evidence to show that it was received at theTribunal. However, again, banks on the challan, by whichthe appeal fee was remitted as also the despatch; said tohave been made through courier service. Even if thepetitioners contentions are taken at its face value, it wasthe bounden duty of the petitioner to enquire about theappeal after the same was despatched through courier,especially since no acknowledgement was received by thepetitioner. Obviously, though the contention, is that theappeal was despatched on 03.06.2006; the petitioner didnot enquire about its fate for more than six years. WPC.28795/2013 which is impugned herein. 2. The learned counsel, admits, that there isabsolutely no evidence to show that it was received at theTribunal. However, again, banks on the challan, by whichthe appeal fee was remitted as also the despatch; said tohave been made through courier service. Even if thepetitioners contentions are taken at its face value, it wasthe bounden duty of the petitioner to enquire about theappeal after the same was despatched through courier,especially since no acknowledgement was received by thepetitioner. Obviously, though the contention, is that theappeal was despatched on 03.06.2006; the petitioner didnot enquire about its fate for more than six years. 3. The further contention raised by the learnedcounsel for the petitioner is that the partners who weresimilarly situated to the petitioner herein, had filedappeals in time, and the same were considered and theirclaims allowed as per Ext.P8 order of the Tribunal. Thepetitioner hence contends that even in the case of the WPC.28795/2013 petitioner, Ext.P8 would be applicable. Such a contentioncould have been raised, if an appeal was filed within timeor within the extended time as provided by the statuteand if the Tribunal accepted as satisfactory, theexplanation offered. In this context, it has to be noticedthat even according to the petitioner, the appeals of allthe other partners were heard together and disposed ofby Ext.P8 order. Ext.P8 order itself is seen passed on20.10.2006. Definitely, the petitioner would have come toknow of such order having been passed and any diligentlitigant would have made enquiries with respect to theappeal despatched by him through courier. More so,when an identical claim raised by, other similarly placedpersons, was allowed in the year 2006. 4. In such circumstance, this Court does notfind any reason to interfere with Ext.P7 order of theTribunal. Like any litigant, the Department is alsoentitled to some finality in the matters, when the assesseehas by his own default failed to institute a proper appeal WPC.28795/2013 and prosecute the same diligently before the Tribunal.The above facts does not commend any interference onthe dismissal of the application to condone delay, madeby the Tribunal. The learned counsel also styles Ext.P9as a request for rectification; again barred by limitationand further more remained unattended despite Ext.R2(b)notice, as revealed from the Department's statement. 5. The reliefs prayed in the writ petition are tore-do the assessment in accordance with Ext.P8 order ofthe Income Tax Appellate Tribunal, to entertain thebelated appeal deeming it to be filed intime, to refund theamount collected as tax and for compensatory cost.Ext.P8 order admittedly does not pertain to the petitionerand there are no sufficient reasons to deem the highlybelated appeal to be in time. When the assessment of thepetitioner remained unchallenged and for that solereason acquired finality; no question arises of refund. Asfor the prayer for compensatory costs, suffice it to saythat, on the facts disclosed, lesser mortals would have WPC.28795/2013 balked from so making a claim. Writ petition is devoid of merit and the same isdismissed leaving the respective parties to bear theircosts. Sd/- (K. VINOD CHANDRAN, JUDGE) jma //true copy// P.A to Judge