Nma/2684/2010 Of The Commissioner Of Income Tax -V, Pune v. Maharashtra Scooters Ltd

PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAYO.O.C.J. Notice of Motion No.2684 of 2010 IN Income Tax Appeal (Lodging) No.899 of 2006 The Commissioner of Income Tax-V...Appellantv/s.Maharashtra Scooters Ltd....Respondent Mr.Vimal Gupta for Appellant.Mr.Nitesh Joshi with Mr.Mitesh Naik i/by Dhru & Co. for Respondent.----- CORAM : J.P. DEVADHAR & SMT.ROSHAN DALVI, JJ. DATED :21st March 2011 P.C.: 1.This Notice of Motion is taken out seeking condonation of delay of 1156 days in taking out the present Notice of Motion seeking restoration of the Appeal which was dismissed under Rule 986 of the High Court (Original thSide) Rules (�the said Rules�) on 5 of June 2007 for non-removal of office objections. 2.In the Affidavit-in-support of the Notice of Motion, it is stated that against the common order of the Income Tax Appellate Tribunal (I.T.A.T.) relating to the Assessment Years 1991-92 to 1994-95, four Appeals were filed by Advocate S.R. Chauhan on behalf of the Revenue. It is further stated that the said Advocate was removed from the Revenue�s panel of Advocates in June 2008. It is further stated that the objections could not be removed in the above Appeals due to administrative difficulties and, therefore, the Appeal came to be dismissed for non-removal of office objections. The delay, it is claimed, is bona fide and deserves to be condoned. 3.Counsel for the Respondent states that the afore-stated statements made in the Affidavit-in-support of the Notice of Motion are totally incorrect because out of four Appeals filed on behalf of the Revenue the objections were removed in respect of one of the Appeals and, therefore, it cannot be said that the Department was not aware of the fact that the objections were required to be removed in the remaining three Appeals. 4.The learned Counsel for the Respondent further submits that this Court while disposing of Notice of Motion No.1578 of 2009 in Income Tax Appeal No.252 of 2005 on th24 April 2009 recorded that the present Appeal has been dismissed under Rule 986 of the said Rules for want of non-removal of office objections. The very same Advocate, who is appearing for the Appellant in the present case, was appearing on behalf of the Revenue in the aforesaid Notice of Motion. Thus the Counsel now thappearing for Revenue knew on 24 April 2009 that the present Appeal has been dismissed. However, no steps thwere taken to restore the Appeal till 19 August 2010 when the present Notice of Motion is taken out. Accordingly, it is submitted that in view of the gross delay, the Notice of Motion is liable to be dismissed. 5.In our opinion, the reasons for the delay set out in the Affidavit filed by the Revenue is wholly unsatisfactory. However, looking to the fact that the earlier Advocate who had filed Appeal on behalf of the Revenue is no more in the panel and the Advocate now appearing on behalf of the Revenue could take steps to revive the Appeals which were already dismissed only when he is specifically authorised to do so, in the facts of the present case, it would be just and proper to condone the delay subject to payment of costs. 6.Accordingly, the Notice of Motion is made absolute in terms of prayers (a) and (b) subject to the Appellant paying costs of Rs.5,000/- to the Respondent within a period of two weeks from today. If the costs of Rs.5,000/- is not paid within the aforesaid period, the Notice of Motion shall stand dismissed without reference to the Court. 7.Office objections to be removed within two weeks. (ROSHAN DALVI, J.) (J.P. DEVADHAR,J.)