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2014 DIGILAW 102 (KER)

Usha Johnson v. Commissioner of Income Tax

2014-02-05

A.MUHAMED MUSTAQUE, THOTTATHIL B.RADHAKRISHNAN

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Judgment : Thottathil B. Radhakrishnan, J. 1. These appeals arise from the dismissal of statutory appeals by the Income Tax Appellate Tribunal on ground of delay after holding that the cause shown for condonation of delay in both those appeals are not satisfactory. 2. These appeals are by the same person, a woman, who pleaded that she is undergoing treatment for Diabetes Mellittus and allied problems as to numbness, low back pain, etc. and was unaware of the fact that orders impugned before the Tribunal were issued. 3. Heard the learned counsel for the appellant and the learned Standing Counsel for the Income Tax Department in the light of the materials and the averments in the applications for condonation of delay. We have also looked into the substance of the appeals as placed for consideration of the Tribunal, on their merits. 4. The fundamental question that appears to be raised in the appeals before the Tribunal was as to whether the transactions of the appellant with M/s. Bharat Petroleum Corporation Limited and M/s. Indian Oil Corporation Limited are transactions under which the appellant could be treated as providing vehicles for hire (tanker lorries to carry materials) or whether the appellant was employing herself as a carrier. This distinction may be relevant to make the choice as to the rate of depreciation that has to be applied in terms of the Income Tax Rules. We clarify that we are not expressing finally on that. 5. It is not as if the appellant had not shown any cause at all to condone the delay. The sufficiency or otherwise in such matters have necessarily to be weighed also, on the scales of justice, depending upon the question whether the delay could be condoned at least on terms. This largely depends on the cause pleaded for the delay and the view that the appellate court, tribunal or authority could take on a prima facie superficial examination of the grounds of appeal, which may also point out that ends of justice require the appeals to be entertained. In this view of the matter, we see that the substantial question of law that arises for decision in these appeals is as to whether the Tribunal had acted, in accordance with law, while it refused to condone the delay, at least on terms. In this view of the matter, we see that the substantial question of law that arises for decision in these appeals is as to whether the Tribunal had acted, in accordance with law, while it refused to condone the delay, at least on terms. On hearing the learned counsel for the parties on that particular issue of law, we are satisfied that the said question is a substantial question of law, and, has to be answered in favour of the appellant. In the result, these appeals are allowed and the impugned orders are set aside on condition that the appellant pays the Department an amount of 10,000/- (Rupees ten thousand only) as costs in each of these appeals within a period of two weeks from today, by making appropriate remittance. If such amounts are remitted, the Tribunal will take back the appeals and treat the applications for condonation of delay as having been allowed and proceed with ITA Nos.123 and 124/Coch/2012, in accordance with law, after affording sufficient opportunity to the parties of being heard. Parties are directed to mark appearance before the Tribunal on 03.03.2014.