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2018 (5) TMI 2012 - KERALA HIGH COURTApplication for setting aside the abatement - condonation of delay of 3345 days - whether the appeal has to be heard on merits since by reason of the death of the assessee? - Revenue submits that the appeal is filed by the Commissioner of Income Tax, Kochi and the Annexures produced along with the counter-affidavit are with respect to different officers - HELD THAT:- We are of the opinion that the Revenue cannot take such a contention, especially in the context of Tax Recovery Officer having send a communication to the wife of the deceased assessee specifically giving effect to the order of the ITAT, which is challenged here. The Tax Recovery Officer would necessarily have, before giving effect to the order, enquired about the further proceedings taken on the basis of the order of the ITAT and this appeal itself was filed in the year 2003. Notice was issued only in the year 2009 for reason of the appeals having not been numbered for reason of the challenge raised to the court fees applicable by way of amendment of the Kerala Court Fees and Suits Valuation Act. Appeals were filed in time and was pending before this Court unnumbered till 2009 and thereafter numbered. In the year 2013, the Tax Recovery Officer has implemented the order and had communicated the demand to the wife of the deceased assessee. The Department ought to have taken up the proceedings for setting aside the abatement and condonation of delay, if at all, within a reasonable period from Annexure R(1)(a) or R(1)(b). We do not see any explanation for the gross delay caused. The applications hence would stand rejected and as a consequence, the appeal is dismissed as abated.
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