P.J.BESSY Vs. INCOME TAX APPELLATE TRIBUNAL

JUDGEMENT

(1.) THIS appeal is filed against the judgment of the learned Single Judge dismissing W.P.(C) No.28795/2013 filed by the appellant. The appellant was a partner of a firm named M/s. Mamata Motels,Thrissur, along with 14 other persons. The Motel along with the land and the building was sold. However, the assessee did not return any income towards capital gains arising from the transfer of the property. This resulted in Ext.P1 order of assessment. The First appeal filed before the Commissioner of Income Tax(Appeals) was dismissed by Ext.P2 order. Long thereafter, the appellant filed Ext.P3 appeal before the Tribunal with a delay of 6 years 8 months and 3 days. That was rejected by Ext.P7 order on the ground of delay. It is thereafter, the writ petition was filed contending that the Tribunal had allowed the appeals filed by ten other partners vide Ext.P8 order and that therefore, the assessment should be revised in the light of Ext.P8 or the Tribunal should hear the appeal on merits. The appellant also prayed for consequential benefits. The learned Single Judge dismissed the writ petition taking the view that the assessment order has become final and it is this judgment which is under challenge before us.

(2.) IT is true that until an assessment order is varied in accordance with law, the order continues to be in force and binding on the assessee. In that view of the matter, the learned Single Judge is justified in his conclusion also. However, facts of the case would show that the other partners of the firm, in which the appellant also was a partner, got the assessment order passed against them nullified by virtue of Ext.P8 order passed by the Tribunal. The Department does not have a case that the case of the appellant is in any manner different from the other partners. In such a situation, there is no reason that, on the only ground that the appellant filed appeal belatedly, she should be fastened with the tax liability which in law could not have been fastened on her. In such circumstances, justice demands that the appellant should also be given the benefit of Ext.P8 appellate order passed by the Tribunal in favour of the other partners of the firm. Therefore we are inclined to set aside the judgment of the learned Single Judge and dispose of the writ appeal itself with a direction to the 2nd respondent to revise Ext.P1 order of assessment passed against the appellant in the light of Ext.P8 order passed by the Appellate Tribunal. This shall be done, as expeditiously as possible, at any rate, within two months of production of a copy of this judgment. The appellant will also be entitled to consequential benefits. Needless to say that when consequential orders are passed, the assessee will not be entitled any interest on any amount due to be refunded to her. Writ Appeal is disposed of.