SRI.P K VASAVAN vs. THE INCOME TAX OFFICER

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WP(C)/26290/2013HC KeralaKLHC01069478201328 October 2013Author: HONOURABLE MR.JUSTICE V.CHITAMBARESH5 pages
AI SummaryPartly Allowed

What did the High Court hold?

The High Court held that while there was some laches on the part of the petitioner in filing the appeal, every endeavor should be made to have a disposal of the appeal on merits rather than non-suiting the appellant on technical grounds. The Court was inclined to condone the delay and afford an opportunity to the petitioner to have his appeal heard on merits. However, this was made conditional upon the petitioner paying a sum of ₹3 lakhs to the first respondent (Income Tax Officer) within two months. The payment was to be made in two installments: the first by 30.11.2013 and the second by 30.12.2013. Upon production of the challan evidencing this deposit before the ITAT, the appeal (Exhibit P3) would be disposed of on merits. The order refusing to condone the delay (Exhibit P6) was quashed. The Court also stated that the order refusing condonation would remain intact if the petitioner defaulted in the payment. The judgment did not expressly leave any issue undecided.

What were the facts?

The petitioner, Sri. P. K. Vasavan, filed a Writ Petition (Civil) under Article 226 of the Constitution of India challenging an order dated 23.08.2013 (Exhibit P6) passed by the Income Tax Appellate Tribunal (ITAT), Cochin Bench. The ITAT's order refused to condone a delay of four years, four months, and two days in filing an appeal (Exhibit P3) against an appellate order dated 10.11.2005 (Exhibit P2). The petitioner had also filed a stay petition (Exhibit P4) and a delay condonation petition (Exhibit P5) along with the appeal. The petitioner had faced proceedings under Section 138 of the Negotiable Instruments Act and underwent imprisonment from 24.11.2006 to 08.04.2008, and was reportedly sick prior to his incarceration.

What were the issues?

1. Whether the High Court should condone the significant delay of over four years in filing an appeal before the ITAT, considering the petitioner's circumstances, including his imprisonment and illness, and the principle of disposing of appeals on merits rather than technical grounds? Assessee's Contention (Implicit): The petitioner argued, through the writ petition, that the delay should be condoned. While specific legal provisions or case law were not explicitly mentioned in the judgment for the petitioner's argument on delay condonation, the court's reasoning implies an argument for affording an opportunity to be heard on merits. The petitioner also highlighted his imprisonment and sickness as reasons for the delay. Revenue's Contention (Implicit): The revenue, represented by the Income Tax Officer, implicitly argued against condoning the delay, as evidenced by the ITAT's order (Exhibit P6) refusing condonation. No specific arguments or authorities were recorded for the revenue in the judgment.

Which sections of the Income-tax Act were involved?

Section 138

AI-generated summary — verify with the full judgment below

Cause title — parties, addresses and appearances
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.CHITAMBARESH MONDAY, THE 28TH DAY OF OCTOBER 2013/6TH KARTHIKA, 1935 WP(C).No. 26290 of 2013 (I) ---------------------------- PETITIONER(S): -------------------------- SRI.P. K. VASAVAN PALANILKUNNATHIL MEZHUVELI PATHANAMTHITTA BY ADVS.SRI.ANIL D. NAIR SMT.NIVEDITA A.KAMATH SRI.R.SREEJITH SMT.SULEKHA BEEVI C S SMT.T.S.VIKEESHA RESPONDENT(S): ---------------------------- 1. THE INCOME TAX OFFICER WARD - 3, THIRUVALLA 689 101. 2. INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH 682 016. BY SRI.JOSE JOSEPH, SC FOR INCOME TAX THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.26290/2013 APPENDIX PETITIONER(S) EXHIBITS EXHIBIT P1 : TRUE COPY OF THE ASSESSMENT ORDER DATED 10.03.2005. EXHIBIT P2 : TRUE COPY OF THE ORDER DATED 10.11.2005. EXHIBIT P3 : TRUE COPY OF THE APPEAL MEMORANDUM FILED BEFORE THE SECOND RESPONDENT EXHIBIT P4 : TRUE COPY OF THE STAY PETITION FILED BEFORE THE SECOND RESPONDENT EXHIBIT P5 : TRUE COPY OF THE DELAY CONDONATION PETITION FILED BEFORE THE SECOND RESPONDENT EXHIBIT P6 : TRUE COPY OF THE ORDER DATED 23.08.2013 PASSED BY THE SECOND RESPONDENT EXHIBIT P7 : TRUE COPY OF THE PAPER BOOKS FILED BEFORE THE SECOND RESPONDENT RESPONDENT(S) EXHIBITS : NIL /TRUE COPY/ P.A. TO JUDGE. V. CHITAMBARESH, J -------------------------------- WP(C) NO. 26290 OF 2013 ------------------------------------ Dated this the 28th day of October, 2013

JUDGMENT Ext.P2 appellate order was challenged in Ext.P3 appeal before the second respondent tribunal. The appeal was accompanied by Ext.P4 petition for stay and Ext.P5 petition for condonation of delay. The delay of four years four months and two days has been refused to be condoned by Ext.P6 order. The same is impugned in this Writ Petition under Article 226 of the Constitution of India.

2.

It is seen that proceedings under the Negotiable Instruments Act had also been initiated against the petitioner. The petitioner was reportedly convicted for offence alleged under Section 138 of the Negotiable Instruments Act. The petitioner underwent imprisonment for the period from 24.11.2006 till 08.04.2008. It is also stated that the petitioner was sick before he suffered incarceration as evidenced by the medical certificate produced.

3.

There is ofcourse some laches on the part of the petitioner in not taking steps to file Ext.P3 appeal in time. But every endeavour should be made to have a disposal of the appeal on merits rather than non suiting the appellant on technical grounds. I am inclined to condone the delay and afford an opportunity to the petitioner to have his appeal heard on merits. This can ofcourse be only on terms taking note of the fact that the present liability comes to about `10 lakhs.

4.

Ext.P6 order would stand quashed and the delay in filing Ext.P3 appeal before the second respondent would stand condoned. This is subject to the condition that the petitioner remits a sum of `3 lakhs with the first respondent within two months. The first instalment shall be paid on or before 30.11.2013 and the second instalment on or before 30.012.2013. The challan evidencing the deposit shall be produced before the second respondent in which event Ext.P3 appeal shall be disposed of on merits.

5.

Ext.P6 order would remain intact in case the petitioner commits default in the payment of `3 lakhs within the time as directed above. The petitioner shall produce a copy of the Writ Petition with the judgment before the second respondent for compliance. The Writ Petition is disposed of. V. CHITAMBARESH

JUDGE ncd

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