Mr. Kochukutty Thomas v. The Assistant Commissioner Of Income Tax And Another

IN THE HIGH COURT OF JDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTIONNOTICE OF MOTION NO. 180 OF 2011ININCOME TAX APPEAL (L) NO. 73 OF 2011 Mr. Kochukutty Thomas..AppellantVs. The Assistant Commissioner of Income Tax and Another..Respondents. Mr. P.P.Pandit with Mr. P.P. Prabhu for the Appellant.Mr. S.K. Bhatnagar with N.R. Prajapati for the Respondents. CORAM : J.P. DEVADHAR AND A.A. SAYED, JJ. DATE : 4TH JULY, 2011. P.C. 1.This Notice of Motion is taken out by the appellant seeking condonation of 4400 days delay in filing the appeal against the order of Income Tax Appellate Tribunal dated 25th August, 1998. 2.The reasons for the delay according to the appellant, is that he was bed ridden due to hameaplegia and paralytic attack with brain hemorrhage. According to the appellant, in view of the amendment to Section 158 BB by the Finance Act of 2002 with retrospective effect from 1st July, 1995, the liability of the assessee would be Nil. It is further contended that the appellant had taken out Miscellaneous Application in the year 2009 seeking recall of the order in original dated 25-8-1998, in view of the amendment to section 158 BB by Finance Act of 2002. As the said application was rejected the appellant had filed Writ Petition bearing No.5095 of 2010 which was allowed to be withdrawn with liberty to file appeal. Accordingly the present appeal is filed by the appellant. 3.In our opinion, the grounds set out in the affidavit in support of the Notice of Motion do not constitute sufficient cause for condoning the delay. Though, the appellant claims that the appeal could not be filed because he was bed ridden due to sickness, the facts on record show that the appellant had filed the appeal in the year 2001 against the order passed by the Assessing Officer giving effect to the order of ITAT dated 25th August, 1998. If the appellant could file an appeal against the order of Assessing Officer giving effect to the order of ITAT, the appellant could have filed appeal against the order of the ITAT as well. Moreover, the amendment to section 158 BB was introduced by the Finance Act of 2002, whereas the Miscellaneous Application was filed before the ITAT belatedly in the year 2009. In these circumstances, in our opinion, no case is made out by the appellant for condoning the delay of 4400 days in filing the appeal. The Notice of Motion is accordingly dismissed with no order as to costs. 4.In view of the dismissal of the Notice of Motion, appeal paper be consigned to the Record. ( A.A. SAYED, J. ) ( J.P. DEVADHAR , J.)