The petitioner, admittedly a Government Company, did not file an appeal from Ext.P3 order of the Income Tax Appellate Tribunal, which was dated 13.03.2009. The petitioner contends that Ext.P3 was passed without hearing the counsel for the appellant/petitioner. In the present Writ Petition, the petitioner assails the rejection of three miscellaneous applications filed, for all the three assessment years; for recalling the order passed and conduct a re-hearing after restoring the appeal. The maintainability of such a prayer under Rule 24 and 25, itself is feeble, considering the delay occassioned. 2. Ext.P3, relates to three assessment years, being 1999-2000, 2000-01 and 2002-03, insofar as the apeals filed by the petitioner/assessee and four appeals filed by the Department. There is no dispute that the counsel, who was entrusted with the appeal, passed away before the order was issued. However, even according to the petitioner, the appeal was heard on 13.03.2009 and the Counsel expired on 26.12.2008. No appeal was also filed from Ext.P3, nor was an application filed before the Tribunal seeking a hearing on the issues raised in the appeal memorandum, immediately thereafter. Later on, the assessee filed three miscellaneous applications before the Tribunal, seeking a re-hearing of the appeal, which were dated 05.04.2013, after expiry of four years from the date of the common order.
3. On going through Ext.P5 series of applications, the only reason stated is that, the counsel was indisposed on account of serious illness and later on passed away and hence the appeals were not attended to. The assessee also claims that such circumstance was beyond the control of the assessee. Definitely, the non appearance of the assessee or his representative or a counsel on the date of hearing was not beyond the control of the assessee. The Counsel passed away three months before the appeal was taken up and a diligent litigant should have followed up the matter. In any event, the death of the Counsel before the matter was heard does not explain the circumstance of the petitioner/assessee having slept over the matter for another four years.
4. The assessee had filed a letter dated 23.09.2013 before the Tribunal, which was filed in support and making additional averments, with respect to the explanation for the delay occassioned. The Tribunal extracted the same, in Ext.P6 order, and what is relevant is that the assesee had, in the said letter, admitted to the fact that there was a conscious decision taken, not to file an appeal from the order of the Tribunal. That is available in paragraph 3 of the letter, which is extracted in Ext.P6 order. The said reason has some nexus with the merits of the appeal. An incidental peep into the merits show that, the assessee had derived some income from a property, which they claimed as “income from business”. The claim was declined by the Assessing Officer who treated it as “income from other sources”. The assessee filed a first appeal and the 1st Appellate Authority found that the same is, “income from house property”. The assessee being aggrieved by the findings of the appellate authority filed a further appeal before the Income Tax Appellate Tribunal, which was disposed of by Ext.P3 reversing the order in appeal and restoring that of the Assessing Officer. A conscious decision was taken not to file an appeal, since, whether it be “income from business” or “income from other sources”, the assessee's exigibility to tax would be the same.
5. The learned Senior Counsel points out that in the circumstance of the income being treated as “income from other sources”, the assessee would not be entitled to many of the deductions, which are allowable under the head “business income”. What comes out from the above statement of facts is that, the aseessee was earlier of the opinion that no appeal need be filed from the order of the Tribunal, but later on changed their opinion and for the purpose of claiming deductions, decided to file an appeal. Obviously the change in opinion was motivated by the orders dated 31.01.2013, produced as Ext.P4 series; which gave effect to the Income Tax Appellate Tribunal's order. That however, cannot be a sufficient reason for the long delay occasioned in challenging, Ext.P3 order. For all the above reasons, the Tribunal cannot be faulted for having refused to exercise discretion to condone the delay of more than 4 years. This Court finds no circumstance to persuade an interference there with.
The Writ Petition hence is dismissed. No costs.
K. VINOD CHANDRAN, JUDGE SB