Nma.1790.09.Odt v. Ctr 279

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1790 OF 2009IN INCOME TAX APPEAL NO. 408 OF 2009 The Commissioner of Income Tax-15, MumbaiVs.Pravinkumar B. Jain ..Applicant ..Respondent .... Mr. Nirmal Mohanty, Advocate for Applicant.Mr. Ashok Patil, Advocate i/b Aasifa Khan for Respondent. .... P.C.: CORAM : M.S. SANKLECHA & G.S. KULKARNI, JJ.DATED : 21 AUGUST 2015 This notice of motion has been taken out to recall theorder dated 27 April 2009 by which the revenue's appeal wasdismissed for default. The affidavit in support of the notice ofmotion indicates that the advocate appearing for the revenue was inCourt, but as she suddenly felt unwell, therefore she had to leavethe Court premises resulting in dismissal of the appeal. 2.Mr. Patil, the learned Counsel for the respondent-assessee submits that the appeal is dismissed on 27 April 2009. The learnedS.S.DESHPANDE1 / 3 Counsel for the respondent/assessee submits that though thepresent notice of motion was taken out in 2009, it is come up forhearing only in 2015 and the same does cause prejudice to therespondents. This in view of the fact that at the time when theimpugned order was passed, the issue arising in the present appealwas covered by the decision of the Delhi High Court in CIT Vs.Eltek Sgs (P) Ltd.[1] in its favour. However, thereafter the same wasreversed by the Apex Court in Liberty India Vs. CIT[2]. It is pertinentto note that the decision of the Apex Court in Liberty India wasrendered on 31 August 2009. The respondent-assessee was alsoserved with the Notice of Motion on 22 May 2009. It is alsorelevant to note that at that time there was no decision on this issueof the jurisdictional Court. In the above circumstances, it is open tothe respondent-assessee to move an application for waiver ofinterest under Section 220(2A) of the Act if he so deems fit. Itwould be considered by the Commissioner of Income Tax on its ownmerits without in any manner being influenced by any observationsherein. 1. 215 CTR 279 2. 317 ITR 218 4.We are satisfied that the reasons in support of the Noticeof Motion. Consequently, the delay is condoned. The notice ofmotion is made absolutely in terms of prayer clause (A). 5.At the request of the respondent-assessee, the appeal isplaced for admission on 31 August 2015. [G.S. KULKARNI, J] [M.S. SANKLECHA, J.]