Mr. Kiran Gajanan Padiyar v. Commissioner Of Income Tax And Anr

IN THE HIGH COURT OF BOMBAY AT GOA MISC.CIVIL APPLICATION NO. 412 OF 2014INSTAMP NUMBER MAIN NO. 1126 OF 2014 MR. KIRAN GAJANAN PADIYAR VersusCOMMISSIONER OF INCOME TAX AND ANR., ... Applicant ... Respondents Mr. Melvyn J Aguiar, Advocate for the Applicant.Ms. Asha A. Desai, Advocate for the Respondent. -Coram:B. P. DHARMADHIKARI &A. S. GADKARI, JJ.-Date:9th September, 2014 P.C. Heard Shri Aguiar, learned Counsel appearing for the Applicant-Assessee and Ms. Desai, learned Counsel appearing forRespondent-Department. 2. The prayer is to condone the delay of 106 days in filing theAppeal under Section 260-A of the Tax Appeal. The reason given inthe application is against the appellate Order passed by ITAT on23.08.2013, the Assessee was directed to file an application for recallon the ground that additional material produced on record beforeITAT and looked into by it, has been used behind the back ofAssessee. This recall proceedings were rejected on 03.01.2014 andsaid Order of rejection has been received by Assessee on 06.03.2014. Thereafter, on 16.04.2014, the Appeal against substantive Order passed by ITAT dated 23.08.2013 has been preferred. LearnedCounsel submits that as time has been spent in bonafide prosecutingthe MCA proceedings, the delay should be condoned and Appealshould be registered. 3. Learned Counsel for the Respondent submits that the grounds forrecall were apparently incorrect and show that without filing asubstantive Appeal before this Court and only to waste time, a MCAwas preferred. She contends that since prosecution of MCA was notbonafide, time spent therein cannot be a ground to condone the delay.4. The contention of Assessee-Appellant is material not looked intoby Assessing Officer has been used by ITAT behind its back. Whether this contention is right or wrong, can be looked into by thisCourt while considering his challenge to the substantive Order dated23.08.2013. It cannot be a ground now to reject the prayer forcondonation of delay. Prima facie, it is seen that the Assessee wasthen prosecuting a grievance which is now sought to be raised beforethis Court, before the ITAT. In this situation, keeping thecontentions of revenue about bonafide nature of MCA open, wecondone the delay. 5. Office to register the Appeal. arp/* A. S. GADKARI, J. B. P. DHARMADHIKARI, J.