IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 11TH AUGUST 2011 / 20TH SRAVANA 1933 OTC.No. 1 of 2011() ------------------- AITA.4/2010 of DY.CMRR.KERALA AGRL.IT & STAT,EKM. .................... PETITIONER/APPELLANT/ASSESSEE ------------------- NELLIAMPATHY HILLS CONSERVATION SOCIETY, PADAGIRI P.O., PALAKKAD - 678059. BY ADV. SRI.S.ANIL KUMAR (TRIVANDRUM) SRI.K.UMAMAHESWAR RESPONDENT/ RESPONDENT/REVENUE --------------------------------- STATE OF KERALA, REP. BY THE COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM. 695033 GOVT.PLEADER, SRI.MUHAMMED RAFIK THIS OTHER TAX CASES HAVING COME UP FOR ADMISSION ON 11/08/2011, ALONG WITH OTC NO.2 OF 2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: O.T.C.No.1/2011 APPENDIX ANNEXURE-1: COPY OF ASSESSMENT ORDER DT.6.11.2004 FOR THE YEAR 2002-03 UNDER THE AIT ACT. ANNEXURE-II(a): COPY OF APPEAL MEMORANDUM FILED BEFORE THE DY.COMMISSIONER (APPEALS) AGAINST ANNEXURE-1. ANNEXURE-II(b): COPYOF THE APPLICATION FOR CONDONING DELAY FILED BEFORE THE DY.COMMISSIONER (APPEALS) ANNEXURE-III: COPY OF THE ORDER DT.10.8.2010 OF THE DY.COMMISSIONER (APPEALS), ERNAKULAM. ANNEXURE-IV: COPY OF ORDER DT.15.11.2010 OF THE APPELLATE TRIBUNAL. //TRUE COPY// PA TO JUDGE C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. ---------------------------------- O.T.C.Nos.1 & 2 OF 2011 ---------------------------------- Dated this the 11th day of August, 2011 J U D G M E N T ~~~~~~~~~~~ C.N.Ramachandran Nair, J. Heard the learned counsel appearing for the assessee in both the cases and also the Government Pleader, who took notice on admission and argued the matter. 2. Both the OTCs pertaining to AIT assessments of the assessees under the same crop is for the year 2002-2003. It is seen that assessments are completed exparte because assessee did not produce books of accounts or file reply to pre- assessment notices. Besides this, assessee did not file appeal for five to six years and thereafter with such inordinate delay the appeals were filed. The Appellate Authority declined to condone the delay. Appellate Authority found no valid reason for condoning delay and therefore appeals were dismissed. Before the Tribunal, the 2nd appeal filed met with the same fate because Tribunal was also not consider that the grounds raised in support of the delay condonation petitions are maintainable. Aggrieved by these orders of the Tribunal, the assessee has come up with these cases before us. O.T.C.No.1 & 2/2011 2 2. Eventhough we thought of condoning the delay on imposing a cost, we notice that assessee does not have serious grievance because income returned, which is the most crucial issue for the assessee, is seen accepted in both the cases. All what the Assessing Officer was done is in the absence of evidence and records he disallowed 50% of the expenditure claimed which has actually resulted in determination of net income at 50% of the gross income returned. Both the assessees are engaged in coffee plantation and the income is only from the same crop. The coffee is not labour incentive plantation because the main labour cost is plucking charges and therefore the estimation of net income at 50% of gross income itself cannot be said to be arbitrary. We, therefore, doubt whether there was a real omission to file appeals or it was a conscious decision to accept the orders and belated appeals are filed as an afterthought only on trial basis. In any case, we do not find any merit and the OTC s are accordingly dismissed. (C.N.RAMACHANDRAN NAIR, JUDGE) ( P.S.GOPINATHAN, JUDGE) ps