Itxa/2926/2018 Of Pr.commissioner Of Income Tax,Central-2 v. Shoppers Stop Ltd

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.2926 OF 2018 Pr. Commissioner of Income Tax, Central-2. .. Appellant v/s. Shoppers Stop Ltd... Respondent … Mr. P.C. Chhotaray, for the Appellant. Ms. Aarti Sathe a/w Mr. Nirav Barot, Ms. Aasavari Kadam i/b. Maneksha &Sethna for the Respondent. … CORAM : K. R. SHRIRAM & KAMAL KHATA, JJ.DATED : 27TH SEPTEMBER 2023 P.C. : 1. On 15th November 2021 in Income Tax Appeal No.1954 of 2017PCIT v/s. Patel Pratibha Joint Venture, the Court had passed an order in which paragraph 1, 2 and 3 read as under: “1. Mr. Pinto is not sure whether the appeal has been served.Board was released on Friday, i.e.,12th November 2021 and asan Advocate on record we would expect Mr. Pinto to check hisfile and inform the court whether the appeal has been served.In any case, it is four and half years since the appeal was filedand it is rather unfortunate that the revenue being the biggestlitigant in this court, does not even bother to ensure that after filing of appeals copies are served on respondent and fileaffidavit of service. Everyday many matters get adjournedbecause the Advocates are unable to assist the court on thisservice aspect. 2.In the circumstances, the Commissioner of Income Tax(Judicial) of Mumbai and Pune, is directed to ensure that everyappeal filed by them, which are pending admission, is servedon respondent within two weeks from today and affidavit ofservice is filed within one week thereafter. If such service isnot effected and affidavit of service is not filed, the appeals willstand dismissed without further reference to the court. 3.Time given for service may appear to be a little shortbut the fact is appellant had more than 4 years to serve. Copyof this order be placed before the Commissioner of IncomeTax (Judicial) Mumbai and Pune as well as Principal ChiefCommissioner Income Tax, Mumbai and Pune.” 2. On 6th September 2023 the following order came to be passed: “1. There was a standing order to serve all the Appeals withina particular time. Mr. Chhotaray is not sure whetherRespondent has been served. If Respondent has already beenserved, then Affidavit of Service to be filed within one week. Ifnot file, by virtue of the earlier self-operatingorders/instructions, this Appeal will not survive. 2. If the Appeal has been served and the Affidavit of Service,as mentioned earlier is filed, then this Appeal be listed foradmission on 27th September 2023.” 3. An affidavit of one Rajiv Kumar, Income Tax Inspector, affirmed on 12th September 2023 is filed in which it is stated that copy of Appeal was served on 30th June 2023 by email. To the Affidavit isalso annexed an email dated 4th September 2023 addressed to , which we are informed by Ms. Sathe is theemail address of the Chartered Accountant. There is nothing toindicate that the appeal was served within the time prescribed inour order dated 15th November 2021 in Income Tax AppealNo.1954 of 2017 quoted above. 4. In view of the self-operative order applying to all Appeals, thisAppeal also should be deemed to have been dismissed. It will notbe out of place to mention that this Appeal is of 2018 and on 6thSeptember 2023 counsel was not aware whether the Appeal hasbeen served and from the email annexed to affidavit of RajivKumar, it appears, though Ms. Sathe denies having received, tohave been served by email on 30th June 2023.Appeal also should be deemed to have been dismissed. It will notbe out of place to mention that this Appeal is of 2018 and on 6thSeptember 2023 counsel was not aware whether the Appeal hasbeen served and from the email annexed to affidavit of RajivKumar, it appears, though Ms. Sathe denies having received, tohave been served by email on 30th June 2023. 4. In view of the self-operative order applying to all Appeals, thisAppeal also should be deemed to have been dismissed. It will notbe out of place to mention that this Appeal is of 2018 and on 6thSeptember 2023 counsel was not aware whether the Appeal hasbeen served and from the email annexed to affidavit of RajivKumar, it appears, though Ms. Sathe denies having received, tohave been served by email on 30th June 2023.Appeal also should be deemed to have been dismissed. It will notbe out of place to mention that this Appeal is of 2018 and on 6thSeptember 2023 counsel was not aware whether the Appeal hasbeen served and from the email annexed to affidavit of RajivKumar, it appears, though Ms. Sathe denies having received, tohave been served by email on 30th June 2023. 5. It is not clear whether email has been sent on 30th June 2023 tothe registered email address of the assessee. We would hasten tostate that this does not mean such service would be sufficient.There is no explanation also why the department did not send theAppeal by courier or by speed post or registered post or by handdelivery to the assessee. the registered email address of the assessee. We would hasten tostate that this does not mean such service would be sufficient.There is no explanation also why the department did not send theAppeal by courier or by speed post or registered post or by handdelivery to the assessee. 6. In the circumstances the Appeal has been dismissed by the self-operative order of this Court. It is open to Appellant to take out anapplication for restoration making out a case as to why for fiveyears the Appeal was not served and more so inspite of a judicialorder. (KAMAL KHATA, J.) (K.R. SHRIRAM, J.)