Kerala High Court
Abdul Rahiman vs The Income Tax Officer on 3 September, 2024
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
ITA NO.49/2024 1
2024:KER:68242
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
TUESDAY, THE 3RD DAY OF SEPTEMBER 2024 / 12TH BHADRA, 1946
ITA NO.49 OF 2024
APPELLANT:
ABDUL RAHIMAN
AGED 67 YEARS
THIRIKOIDE CHELLAN MARUTHONI HOUSE,
NADUVATHAPARA, POST, PERINGOTTUKURUSSI,
PALAKKAD, PIN - 678574
BY ADVS.
ADITYA UNNIKRISHNAN
PRIYADARSINI S.
BINISHA BABY
SARITHA K.S.
ANIL D. NAIR (SR.)
RESPONDENT:
THE INCOME TAX OFFICER
WARD-5, PALAKKAD, PIN - 678001
BY ADVS.
P.G. JAYASHANKAR, SC
KEERTHIVAS GIRI
THIS INCOME TAX APPEAL HAVING COME UP FOR ADMISSION ON
03.09.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
ITA NO.49/2024 2
2024:KER:68242
JUDGMENT
Dated this the 3rd day of September, 2024
Syam Kumar V.M., J.
This appeal is preferred by the appellant aggrieved by Order
dated 31.05.2024 of the Income Tax Appellate Tribunal, Cochin
Bench, dismissing ITA No.90/Coch/2023 filed by him as barred by
limitation.
2. Appellant, a dealer in beedis, is an assessee under the
Income Tax Act, 1961. For the assessment year 2017-18,he had filed a
return of income declaring a net income of Rs.1,04,760/-. The
assessing authority, vide Annex.A assessment Order alleged
suppression of turnover and proceeded to assess an amount of
Rs.1,05,680/- as an addition to the returned income. The appellant
challenged the said assessment vide Annex.B, before the First
Appellant Authority, only to be dismissed vide Annex.C. The said
Order of dismissal, it is contended, came to the notice of the appellant
only when the show cause notice dated 28.10.2022 was received
seeking objection to the proposed penalty. Hence the appellant
preferred Annex.D appeal before the Appellate Tribunal on
24.01.2023 along with a petition seeking to condone the delay of 241
days. Tribunal, vide Annex.E Order dated 31.05.2024 dismissed the
appeal as barred by limitation and also made some scathing
2024:KER:68242
observations against the learned counsel who represented the
appellant before the Tribunal. The said Order of the Tribunal (Annex.
E) is challenged in this I.T.Appeal.
3. We heard Sri.Anil Nair, Senior Advocate instructed by
Sri.Aditya Unnikrishnan for the appellant and Sri.P.G.Jayashankar,
learned Standing Counsel of the respondent.
4. The principal reason stated for the delay in filing the second
appeal before the Tribunal was that the Order impugned was neither
served upon the appellant via e-mail nor post. The appellant is a
semi-literate person who does not access a computer by himself, and
he came to know about the Order dismissing his appeal only when he
visited the office of his tax consultant in Palakkad. The delay of 241
days was thus sought to be condoned.
5. The Tribunal while hearing the delay condonation petition,
noted that even assuming that the appellant finally came to know
about the Order of dismissal pursuant to the show cause notice dated
28.10.2022, there was a further delay of 3 months in filing the appeal
before the Tribunal, which had not been satisfactorily explained by
the appellant. The Tribunal then sought confirmation from the
Department regarding the date on which the First Appellate Order
was communicated to the appellant. In compliance thereof, the
respondent filed a report stating that the Order was served on
14.12.2021 vide email issued to the appellant's Chartered Accountant
2024:KER:68242
(CA). In reply to the same, the appellant's CA filed an affidavit stating
that the Order was not received in his e-mail on 14.11.2021. A typo
had crept into the said affidavit whereby instead of 14.12.2021 it had
been typed 14.11.2021. The Tribunal, as discernible from the Order,
took strong exception to the said error and also opined that the
affidavits filed by the appellant explaining the delay had
contradictions regarding the date on which he had acquired the
knowledge of dismissal. Terming the second affidavit filed by the
appellant as one filed on the sly and uncalled-for, the Tribunal
concluded that the affidavits violated the oath and amounted to
perjury. After a triad of allegations including violation of the code of
conduct against the appellant's counsel, the Tribunal vide Annex.E
dismissed the appeal filed by the appellant holding that no
explanation has been afforded for condoning the delay in filing the
same.
6. We have considered the explanation for the delay in filing the
appeal as put forth by the appellant. We do not find anything to hold
that the delay occasioned was deliberate or willful. The said delay of
241 days in filing the appeal is not unconscionable and has been
satisfactorily explained by the assessee and his CA, albeit with
mistakes and typos that had crept into the same. It is trite that
disposal on merits is to be preferred over a dismissal on default. This
proposition applies equally to quasi-judicial Tribunals as it does to
2024:KER:68242
Courts. We are satisfied that in the facts and circumstances, the delay
in filing Annex.B appeal is fit to be condoned.
7. Regarding the appellant's AR conduct, we do not find any
material warranting the observations made by the Tribunal against
him in the Order under challenge. The said observations deserve to
be expunged.
8. Accordingly, the substantial questions of law are
answered in favour of the assessee and against the revenue. The
delay of 241 days in filing Annex.B appeal is condoned. Annex.E
Order dated 31.05.2024 dismissing the appeal is hereby set aside. All
observations in Annex.E Order as against the counsel of the
appellant, Sri.Padmanathan shall stand expunged. The Tribunal shall
consider Annex.B appeal on merits treating the same as one filed
within time. It is clarified that we have not commented on the merits
of the appeal and all contentions of the parties are left open.
I.T.Appeal is disposed of as above.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
SYAM KUMAR V.M.
JUDGE
csl
2024:KER:68242
PETITIONER'S ANNEXURES
Annexure A TRUE COPY OF THE ASSESSMENT ORDER DATED.
12-11-2019
Annexure B TRUE COPY OF THE APPEAL IN FORM 35 DTD.
24-12-2019
Annexure C TRUE COPY OF THE APPELLATE ORDER DTD.
14-12-2021
Annexure D TRUE COPY OF THE APPEAL FILED BEFORE THE
INCOME TAX APPELLATE TRIBUNAL, COCHIN
BENCH, COCHIN IN FORM 36DTD. 24-01-2023
Annexure E THE ORDER IN ITANO.90/COCH/2023:
ASST.YEAR 2017-2018 PASSED BY THE
TRIBUNAL DTD.31-05-2024
