Cmapl/500/2016 Of Principal Comnr.,Income Tax,Shelter Chhak,Cuutack v. Skol Breweries Ltd

Order No.04. IN THE HIGH COURT OF ORISSA AT CUTTACK CMAPL No.500 of 2016(Through Hybrid mode) …. Principal Commissioner of Income tax, Cuttack Petitioner Mr. Tusharkanti Satapathy, Advocate (Senior Standing Counsel) Mr. Debasish Hazra, Advocate -versus- …. Skol Breweries Ltd. Opposite Party CORAM: JUSTICE ARINDAM SINHA JUSTICE SANJAY KUMAR MISHRA ORDER04.07.2023 CMAPL No.500 of 2016 and ITA no.27 of 2005 1.Mr. Satapathy, learned advocate, Senior Standing Counsel appears on behalf of applicant/appellant/revenue. He submits, the appeal was presented on 22[nd] February, 2005. There was delay of 7 days. This delay was overlooked and there was omission to file application for condonation of the delay. That became a defect in the appeal. On 29[th]January, 2014 the First Division Bench granted time to remove the defects with a direction on default for dismissal of the appeal without further reference to the Bench. Hence, revenue immediately took steps to apply for extension of the time by filing Misc. Case no.86 of 2014 on 5[th] February, 2014. He points out, it was the 7[th] day from 29[th] January, 2014. This application was never listed before the Bench, for his client to pray for the extension. The situation contributed to his client’s further omission to file the application for condonation of delay, inasmuch as, the application for extension of the time was to be moved. In the situation, on 30[th] August, 2016 there was noting made in order sheet by the Registry that the appeal stood dismissed. Taking date of dismissal of the appeal as on 30[th] August, 2016, present restoration application was made in time. He submits further, application for condonation of delay in filing the appeal has also been filed. Said application was registered and numbered as I.A. no.97 of 2023. He prays for restoration of the appeal. 2.Order dated 29[th] January, 2014, by operation of which the appeal stood dismissed, was order no.3. It is also a fact that applicant had filed Misc. Case no.86/14 on 5[th] February, 2014, for extension of time to remove the defects. This application having been filed before expiry of 7 days from 29[th] January, 2014, we are inclined to accept applicant’s contention that there was a situation in which applicant was placed, preventing it to follow through with filing the condonation of delay application in the appeal or taking any other step. It is also a fact on 30[th]August, 2016 there was noting in the order sheet that the appeal stood dismissed. Though the dismissal relates back to 29[th] January, 2014 but appellant’s contention is to be considered that it took the date of dismissal to be 30[th] August, 2016 and hence, immediately thereafter applied for restoration of the appeal. 3.Section 260-A in Income Tax Act, 1961 provides for admission for appeal by the High Court on being satisfied that a substantial question of law is involved in a case. Hence, an appellant is to render the satisfaction. Sub-section (7) provides for application of Code of Civil Procedure, 1908 relating to appeals to the High Court as shall, as far as may be, apply in the case of appeals under the section. That means on admission, notice of appeal is to be given to the respondent. Order sheet reveals that the matter of filing the appeal, delay, dismissal and the restoration filed, were all been between appellant and Court. The assessee is not yet on board. 4.In aforesaid facts and circumstances, we are inclined to accept the cause shown for being prevented in removing defect of the appeal, leading to its dismissal. The appeal is restored to file and number. The application is allowed and disposed of. ( Arindam Sinha ) Judge Signature Not Verified Digitally SignedSigned by: PRASANT KUMAR SAHOOReason: AuthenticationLocation: OHCPrasant Date: 04-Jul-2023 18:07:25 ( S. K. Mishra ) Judge