Commissioner Of Income Tax v. M/S Vindhya Telelinks Ltd

---1--- THE HIGH COURT OF MADHYA PRADESH R.P. No.612/2020 (Commissioner of Income Tax Vs. M/s Vindhya Telelinks Ltd.) Jabalpur Dated : 1.4.2021 Shri Sanjay Lal, Advocate for the petitioner/Revenue Department. Shri Narendra M. Sharma, Advocate appears through VideoConferencing assisted by Shri Abhishek Dhyani and Shri Sapan Usrethe,Advocates for the respondent. This review petition has been filed by the Commissioner of IncomeTax, Jabalpur seeking review and recall of the order dated 25.11.2019 passedby this Court in I.T.A. No.124/2012 dismissing the appeal as withdrawn withliberty “to the Revenue to file an application for revival of the appeal, incase something survives therein”. This review application was filed by the Revenue on 2.7.2020. Theaffidavit in support of the review petition was sworn in before the Notary on30.6.2020. The period of limitation for filing the review petition is 30 days.The office pointed out the delay of 81 days as also the defect of not filing theapplication for condonation of such delay alongwith the review petition. Itwas thereafter that the Revenue had filed the application for condonation ofdelay belatedly on 8.1.2021. What is stated in the application seekingcondonation of delay is that the delay has been caused due to administrativeexigency such as collection of documents, signing authorization, draftingetc. and inasmuch as the major reason of delay in filing the review petitionwas restriction in place owing to Covid-19 lockdown and that the reviewapplication could be filed only after the Registry of this Court startedfunctioning regularly. Shri Sanjay Lal, learned counsel for the Revenue submitted that thismatter was decided alongwith almost 100 appeals on one single day on thebasis of the Circular No.17/2019 dated 8.8.2019 issued by the Governmentof India, Ministry of Finance, Department of Revenue, Central Board ofDirect Taxes (Judicial Section), New Delhi. By the aforesaid Circular, apolicy decision was taken by the Revenue to withdraw all such Income TaxAppeals where the tax effect involved is less than Rs.1 Crore. It was, therefore, that the prayer for withdrawal of the appeal(s) was made.However, learned counsel submitted that it was thought that there could besituation whereon scrutiny the tax effect might be more than Rs.1 Crore,therefore, prayer was made to grant liberty to the Revenue to file anapplication for revival of the appeal, in case something survives therein. It isfurther submitted that on scrutiny of all the cases it was discovered that thetax effect in the present case was more than Rs.1 Crore. Learned counsel for the Revenue also argued that the Registry of thisCourt has given relaxation of the Covid-19 period to the Revenue pursuantto the judgment of Supreme Court dated 23.3.2020 passed in suo motu WritPetition (Civil) No.3/2020 (2020 SCC online SC 343) (In Re: Cognizancefor Extension of Limitation). The total period of relaxation comes to 109days which when adjusted from the total period of delay of 220 days, thisreview petition, as per the report of the Registry is time barred by 81 days.He further submitted that the delay occasioned on account of bona fidereasons, inasmuch as the appeal in the present case was not liable to bewithdrawn as the tax effect was actually more than Rs.1 Crore. However, itwas inadvertently withdrawn because almost 100 appeals were listed on thesame day and timely scrutiny could not be possible. Shri Narendra Sharma, learned counsel appearing for theAssessee/respondent has strenuously opposed the application seekingcondonation of delay. Learned counsel submitted that the review petitionfiled on 2.7.2020 was wholly incompetent. The Revenue was fully awarethat the limitation for filing the review petition was 30 days, yet it did notfile the application seeking condonation of delay therewith. The reviewpetition was, therefore, not maintainable. It was only after the Registrypointed out the defect of delay that the application for condonation of delaywas filed highly belatedly on 8.1.2021. He further submitted that the reasonsgiven in the application seeking condonation of delay do not make out a casefor condonation of delay within the meaning of Section 5 of the LimitationAct as they do not constitute ‘sufficient cause’. Therefore, the application forcondonation of delay as well as the review petition both deserve to bedismissed. It is submitted that the petitioner/Revenue may not be entitled to ---3--- any relaxation for the Covid-19 period because the order of which thereview is sought was passed on 25.11.2019 much before the onset ofpandemic of Covid-19, which came about sometime in the mid of March2020 and the period of limitation being 30 days for filing of the reviewpetition expired on 24.12.2019. Accordingly, it is prayed that the applicationseeking condonation of delay be dismissed with cost. Having heard learned counsel for the parties and perused the order ofwhich review is sought, this Court finds that the appeal was admittedlydisposed of as withdrawn on the prayer of the Revenue, but at the same timeliberty was granted to the Revenue to file an application for revival of theappeal, in case something survives therein. The Circular No.17/2019 dated8.8.2019 provided for withdrawal of such appeal where the tax effect is lessthan Rs.1 Crore. It is not disputed even by the Assessee before us that the taxeffect in the present case is more than Rs.1 Crore. However, the Assessee isopposing the condonation of delay contending firstly that the benefit ofCovid-19 relaxation period in view of the judgment dated 23.3.2020 ofSupreme Court in Re : Cognizance for Extension of Limitation (supra)may not be extended to the Revenue and secondly the review applicationwhen filed originally was incompetent as the same was not accompanied bythe application seeking condonation of delay and thirdly the explanationoffered for the delay in the application seeking condonation thereof does notconstitute ‘sufficient cause’ within the meaning of Section 5 of theLimitation Act. No doubt the Revenue has been somewhat lethargic in filingthe review petition alongwith the application for condonation of delay, but atthe same time we are also cognizant of the fact that the said appeal was notdecided on merits, but was allowed to be withdrawn pursuant to the policyof the aforesaid Circular of the Central Ministry, which itself imposes acondition to on withdrawal of the appeals only if the tax effect is less thanRs.1 Crore. In the facts of the case the Revenue may not be wholly unjustified inrequesting for revival of the appeal because such liberty was consciouslyreserved for them by this Court while allowing disposal of the appeal aswithdrawn, but this Court is also persuaded to compensate the Assessee for the inconvenience caused to them on account of delay in filing the reviewpetition. In view of the aforesaid reasons, we allow the application, I.A.No.177/2021, seeking condonation of delay in filing the present reviewpetition and as a consequence, we also allow this review petition and recallthe order dated 25.22.2019, but at the same time, we deem it appropriate todirect the Revenue to pay Rs.5000/- (Rs. Five Thousand only) to theAssessee as costs within a period of four weeks from today. In the facts of the case the Revenue may not be wholly unjustified inrequesting for revival of the appeal because such liberty was consciouslyreserved for them by this Court while allowing disposal of the appeal aswithdrawn, but this Court is also persuaded to compensate the Assessee for the inconvenience caused to them on account of delay in filing the reviewpetition. In view of the aforesaid reasons, we allow the application, I.A.No.177/2021, seeking condonation of delay in filing the present reviewpetition and as a consequence, we also allow this review petition and recallthe order dated 25.22.2019, but at the same time, we deem it appropriate todirect the Revenue to pay Rs.5000/- (Rs. Five Thousand only) to theAssessee as costs within a period of four weeks from today. It shall be open for the Revenue to recover the aforesaid amount ofcosts from the Officers of the department, if found negligent in filing of theapplication for condonation of delay as well as the review petition withenormous delay. With the aforesaid directions, this review petition is disposed of. (Mohammad Rafiq)(Mohd. Fahim Anwar) Chief Justice Judge AnchalANCHAL KHARE 2021.04.01 17:12:17 +05'30'