Mumbai - 400 020 v. M/S.letape (India) P.ltd

- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3578 OF 2005 IN INCOME TAX APPEAL (LODG.) NO.1539 OF 2005 The Commissioner of Income Tax-5, Aayakar Bhavan, M.K.Road, Mumbai - 400 020. .. Appellant Vs. M/s.Letape (India) P.Ltd. .. Respondent -- Shri R.Ashokan for the Appellant. Shri Sanjiv M.Shah for the Respondent. -- CORAM : SRI R.M.S.KHANDEPARKAR & SRI P.B.MAJMUDAR, JJ DATED : 25TH JUNE, 2008 P.C. 1. Heard. This Notice of Motion is taken out for condonation of delay of 357 days in filing the appeal. In the affidavit in support of the Notice of Motion, it is stated that the impugned order is of the Tribunal and the same is dated 21st June, 2004. It was received by the office of the Commissioner of Income-tax, City-5, on 26th July, 2004 and the same was submitted on 22nd September, 2004 wherein the Assessing Officer did not recommend filing of the appeal. The Additional CIT, however, did not concur - 2 - with the said report of the Assessing Officer and vide its letter dated 5th November, 2004 recommended the filing of the appeal. While processing the file, the appointment of a panel of counsel, etc., there was a delay of 357 days in filing the appeal as the appeal was filed on 23rd November, 2005, though actually the last date for filing of appeal was 22nd November, 2004. 2. The learned advocate appearing for the respondent drawing our attention to the affidavit filed by the respondent submitted that the appellant has not disclosed any cause for delay caused in filing the appeal and, therefore, the Notice of Motion deserves to be dismissed. 3. Bare perusal of the affidavit in support of the Notice of Motion would reveal that the order dated 21st July, 2004 was duly received by the Commissioner of Income-tax on 26th July, 2004 and it was to the knowledge of the appellant that the last date for filing the appeal was 22nd November, 2004. In fact, the affidavit clearly discloses that the decision to file an appeal was taken on 10th November, 2004. However, thereafter, there was absolutely no explanation as to what had prevented the appellant - 3 - from filing the appear earlier to 23rd November, 2005. The affidavit in support of the Notice of Motion is totally silent in that regard. In other words, there is no explanation for the period from 22nd November, 2004 till 23rd November, 2005 as to why there was delay for the said period in filing the appeal. In the absence of any cause being shown for the delay, mere contention that due to processing of the matter and appointment of a panel of counsel that it caused delay, cannot be accepted as sufficient cause for such a long delay. 4. The learned advocate for the respondent has drawn our attention to the decision of the Division Bench in Commissioner of Income-tax v. Sanjay Commissioner of Income-tax v. SanjayK.Sarawagi, reported in (2008)301 ITR 232 (Bom) K.Sarawagi, wherein it was held that the plea that the delay in filing the appeal was due to restructuring of the Department was a routine and stereotype reason furnished by the Revenue in almost all the applications for condonation of delay though restructuring of the Department had actually taken place in the year 2001 whereas the appeal was filed much thereafter, and therefore, the Revenue could not be given any special treatment as all the litigants before the Court are to be treated in a similar manner - 4 - and in the absence of sufficient cause being shown for delay, the same cannot be condoned. Indeed, the explanation that the Department was busy in processing the matter or appointing the panel of counsel, by no stretch of imagination, it can be said to be an filing the appeal was due to restructuring of the Department was a routine and stereotype reason furnished by the Revenue in almost all the applications for condonation of delay though restructuring of the Department had actually taken place in the year 2001 whereas the appeal was filed much thereafter, and therefore, the Revenue could not be given any special treatment as all the litigants before the Court are to be treated in a similar manner - 4 - and in the absence of sufficient cause being shown for delay, the same cannot be condoned. Indeed, the explanation that the Department was busy in processing the matter or appointing the panel of counsel, by no stretch of imagination, it can be said to be an explanation for delay of 357 days in filing the appeal. We are aware that the Government and in particular the Revenue Department, may require some consideration in dealing with the matter relating to the condonation of delay as the possibility of such officer conniving with the Assessee to defeat the revenue claim cannot be totally ruled out. However, that would not mean that the Department would be entitled for condonation of delay of any number of days without disclosing any cause for the same. In case, any officer or more officers are responsible for the delay by conniving with the Assessees, certainly the Department may take action against the concerned officer or officers but that itself cannot be a ground for condonation of delay. 5. In the absence of sufficient cause being shown for such a long delay of 357 days in filing the appeal, we do not find any case being made out for the same and hence the Notice of Motion is rejected. - 5 - ( R.M.S.KHANDEPARKAR, J ) ( P.B.MAJMUDAR, J )