In Itxa 6340/2010 v. Income Tax Appeal (L)

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2844/2010 IN ITXA 6340/2010 Commissioner of Income tax-3 MumbaiAppellant VS. ICICI Bank Ltd.Respondents Mr.Vimal Gupta for AppellantMs.A.Vissanji a/w Mr.S.J.Mehta for Respondents P.C. CORAM- J.P.DEVADHAR ,AND MRS.MRIDULA BHATKAR,JJ.DATE -21ST FEBRUARY,2011 1Income Tax Appeal (L) No.971/2009 (later on numbered as No. 6340/2010 was dismissed on 20/7/2009 as the same was beyond time by 83 days. 2Challenging the dismissal order, the appellant moved the Apex Court and by order dated 13/8/2010 the Apex Court set aside the order dated 20/7/2009 and gave liberty to the appellant to move this Court by way of fresh Notice of Motion within 8 weeks from the date of order i.e. 13/8/2010 . In the order dated 13/8/2010 it is further stated that the matter will not be considered by the High Court if the appellant fails to take out the Notice of Motion within 8 weeks from 13/8/2010 . 3Admittedly the present Notice of Motion was taken out on 6/10/2010 and in fact the affidavit in support of the Notice of Motion was affirmed on 6/10/2010 . However, the Notice of Motion was lodged on 7/10/2010 . It is contended by the counsel for the assessee that the Notice of Motion is delayed by one day . In our opinion since the Notice of Motion was taken out on 6/10/2010 and even the affidavit was affirmed on 6/10/2010 , the fact that there is delay in lodging the Notice of Motion, it cannot be said that the notice of motion is taken out belatedly. Hence the Notice of Motion is made absolute in terms of prayer clause ‘a’. No costs. (Mrs.Mridula Bhatkar,J.) (J.P.Devadhar,J.)