Nma/2372/2010 Of The Commissioner Of Income Tax, Mumbai v. M/S.reliance Industries Limited

PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTIONORDINARY ORIGINAL CIVIL JURISDICTION Notice of Motion No.2372 of 2010IN The Commissioner of Income-tax-LTU v/s. M/s.Reliance Industries Ltd. ... Appellant ... Respondent Mr.Vimal Gupta for Appellant. Mr.J.D. Mistri, Sr.Advocate with Mr.P.C. Tripathi and Mr.Rajuarak for Respondent.----- CORAM : J.P. DEVADHAR & SMT.ROSHAN DALVI, JJ. DATED : 8[th] March 2011 P.C. : 1.This Notice of Motion is taken out, seeking condonation of delay of 812 days.of delay of 812 days. 2.The relevant facts are that Appeal No.4158 of 2009 was originally filed on 24[th] April 2007 against the order of the Income Tax Appellate Tribunal (�ITAT�) dated28[th] February 2006 relating to Assessment Year 1994-95. The tax involved in this Appeal is Rs.51,20,94,120/-.originally filed on 24[th] April 2007 against the order of the Income Tax Appellate Tribunal (�ITAT�) dated28[th] February 2006 relating to Assessment Year 1994-95. The tax involved in this Appeal is Rs.51,20,94,120/-. 3.Since the Appeal was delayed by 287 days, the Appellant had taken out a Notice of Motion bearing No.1653 of 2007, seeking condonation of delay in filing the Appeal. By an order dated 4[th] March 2008, this Court condoned the delay of 287 days subject to payment of costs quantified at Rs.7500/-. This Court further ordered that the Appellant shall remove the office objections, if any, within 12 weeks from 4[th] March 2008 and if the objections are not removed within that period then the Appeal shall stand dismissed for non-prosecution. As per the above order, it was obligatory on the part of the Appellant to remove the office objections on or before 27[th] May 2008. Since the objections were not removed by that date, the Appeal stood dismissed for non-prosecution as per the order dated 4[th] March 2008. 4.At this sage, it would be relevant to note that the objections raised in the Appeal were thus: �(1) Proforma, impugned order and prayers to be flagged. (2) Mention sub-section in the title. (3) Whether delay is condoned. (4) Correct verification clause. (6) Make two volumes of Appeal. Correct II set.� These minor objections raised by the department were not removed inspite of 12 weeks time given by this Court and the Appeal was allowed to be dismissed for non-prosecution. 5.It is only on receipt of a letter from the Director of Income-tax (Vigilance), Western Region, dated 18[th] June 2010, steps were taken to file the present Notice of Motion on 18[th] August 2010 seeking condonation of delay of 812 days. 6.The explanation given in the Affidavit-in-support of the Notice of Motion is that the officer concerned was in-charge of the proceedings till 12[th] December 2008 had failed to remove the office objections and action is being taken against him by referring the matter to the Director of Income-tax (Vigilance). The relevant portion of the Affidavit reads thus: �4. I say that an explanation was called by the Ld.CIT-LTU, Mumbai vide letter dated 26/11/2010, from the previous jurisdictional officer, the then DCIT-3(3), Mumbai, Shri Mudit Nagpal, for circumstances which led to non-removal of office objections which have led to this appeal being dismissed. It has been explained by Shri Mudit Nagpal, vide his reply dated 16/12/2010 & 17/01/2011 that there was considerable delay in transferring judicial folders from the Law Ministry to the Department in the years 2007-2008. Further, it has also been explained that due to this fact & also due to other ITAT orders received in regular course there were an unusually high number of appeals that had to be filed within the period of July 2007 to May 2008 and in that period around 154 Appeals were filed u/s 260A under the charge of the Deputy Commissioner of Income Tax (DCIT), Circle 3(3), Mumbai, which was the transferor charge in the above matter. It was also explained by Shri Mudit Nagpal there was also a change in the panel of Counsels during that period which resulted in inadequate number of advocates available and authorized to represent the Department before the Hon�ble Court. It was also explained that the Inspectors were not familiar with court procedures. In these circumstances, it was submitted by Shri Mudit Nagpal that non-removal of objections was due to a bona-fide error alone. 5. I respectfully say and submit that the Ld. CIT-LTU, Mumbai had forwarded his report with the reply of Shri Mudit Nagpal to Director of Income Tax (Vigilance), Mumbai vide letter dated 17/01/2011, for appropriate action.� In the Affidavit, it is further stated that the present incumbent, who took charge of the proceedings with effect from 12[th] December 2008, was not intimated that the present Appeal has been dismissed for non removal of office objections and hence the delay cannot be attributed to the present incumbent. 7.In our opinion, the explanations given in the Affidavits filed on behalf of the Appellant are wholly unsatisfactory. While condoning the delay of 287 days this Court specifically directed the Appellant to remove the office objections within 12 weeks, making it clear that failure to remove objections will entail dismissal of the Appeal for non-prosecution. It was obligatory on the part of the concerned officer as well as the Advocate on record to remove the objections within the stipulated time. Failure to remove office objections inspite of specific direction, clearly shows total carelessness and dereliction of duty. Although the explanation given by the Appellant seeking condonation of delay is not satisfactory, in our opinion, since delay in filing the Appeal has already been condoned by this Court, it would be just and proper to condone the delay in removing office objections subject to payment of exemplary costs. 8.Accordingly, the Notice of Motion is made absolute in terms of prayers (a) and (b) subject to the Appellant paying costs of Rs.25,000/- to the Respondent within two weeks from today and remove the objections in the meantime. 9.It would be open to the Appellant to recover the amount from the concerned officer, if deemed fit.from the concerned officer, if deemed fit. 10.The Notice of Motion is disposed of accordingly. (SMT.ROSHAN DALVI, J.) (J.P. DEVADHAR, J.)