Commissioner Of Income Tax-8 v. M/S.chiron Behring Vaccines Pvt. Ltd

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.851 OF 2013ININCOME TAX APPEAL (LODG.) NO.861 OF 2013 Commissioner of Income Tax-8..AppellantVs.M/s.Chiron Behring Vaccines Pvt. Ltd....Respondent Mr. Arvind Pinto for the Appellant. CORAM : MOHIT S. SHAH, C.J. & M.S. SANKLECHA, J.DATE : 10 July 2013 P.C. This Notice of Motion has been taken out by the Commissioner of Income Tax-8 seeking condonation of the delay of 590 days in filing the Income Tax Appeal against the order dated 25 February 2011 of the Income Tax Appellate Tribunal, Mumbai, (Tribunal) for assessment year 2002-03. The ground urged in the affidavit in support of the Notice of Motion is that the Commissioner had filed Miscellaneous Application after the impugned order of the Tribunal and upon dismissal of the said Miscellaneous Application before the Tribunal the present appeal has been filed. 2,The impugned order of the Tribunal was passed on 25 February 2011. Almost one year thereafter the Miscellaneous Application came to be filed on 3 February 2012. The Tribunal dismissed the said Application on 8 August 2012. The Commissioner of Income Tax filed appeal against the order dated 8 August 2012 of the Tribunal on the Miscellaneous Application, which came to be disposed of by this Court on 14 February 2013. Thereafter on 31 May 2013 the Commissioner of Income Tax has filed Income Tax Appeal for challenging the order dated 25 February 2011 of the Tribunal. There is no sufficient explanation for the time taken by the applicant-Commissioner for filing the Miscellaneous Application after 11 months and 23 days by which time the period to file an appeal also expires. In any event the reasons for the delay is set out in affidavit in support are as under:- “3. It was then pointed out that while an appeal was being filed against the Miscellaneous Application, no appeal had been was filed against the orders of the Hon'ble ITAT in the case.filed against the Miscellaneous Application, no appeal had been was filed against the orders of the Hon'ble ITAT in the case. 4.I say that the Department has taken a view of contesting the orders of the Hon'ble ITAT, Mumbai since substantial and grave questions of law, having immense revenue implications emanate from this order.contesting the orders of the Hon'ble ITAT, Mumbai since substantial and grave questions of law, having immense revenue implications emanate from this order. 5.I say accordingly on the basis of the legal opinion of our Counsel it has been decided to file an appeal against the order of the Hon'ble ITAT, Mumbai.our Counsel it has been decided to file an appeal against the order of the Hon'ble ITAT, Mumbai. 6.I say that the delay is bonafide. The delay is not due to any negligence on the part of the Appellant. I say that this delay is not deliberate, intentional or wanton. It is humbly prayed that the delay of 590 days be condoned.”any negligence on the part of the Appellant. I say that this delay is not deliberate, intentional or wanton. It is humbly prayed that the delay of 590 days be condoned.” From the above it is clear that there is even no attempt to explain the delay in filing the appeal. 3.We have also gone through the impugned order dated 25 February 2011 of the Tribunal. We find that in respect of the issues on which the applicant-Commissioner has sought to raise substantial questions of law is with regard to determination of Arm's Length Price in respect of vaccines and of royalty the Tribunal has merely remanded the matter to the Assessing Officer for determination in accordance with law, without laying down any new principle. The Tribunal has thus remanded From the above it is clear that there is even no attempt to explain the delay in filing the appeal. 3.We have also gone through the impugned order dated 25 February 2011 of the Tribunal. We find that in respect of the issues on which the applicant-Commissioner has sought to raise substantial questions of law is with regard to determination of Arm's Length Price in respect of vaccines and of royalty the Tribunal has merely remanded the matter to the Assessing Officer for determination in accordance with law, without laying down any new principle. The Tribunal has thus remanded the matter to the file of the Assessing Officer. Therefore, also we are of the view that at this stage no prejudice has been caused to the revenue as the Tribunal has not finally determined any question of law which would warrant entertaining this appeal. 4.For the reasons aforesaid, the Notice of Motion is dismissed. Accordingly, there is no question of the appeal being taken on record. CHIEF JUSTICE M.S. SANKLECHA, J.