Ompm/14/2023 Of Principal Commissioner Of Income Tax v. M/S Milestone Gears Private Limited

HON’BLE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA OMP(M) No.14/2023 in ITA No.2/2024 Decided on: 29.04.2024 Pr. Commissioner of Income Tax-1 …..Applicant/AppellantVersus M/s Milestone Gears Private Limited …...Respondent Coram The Hon’ble Mr. Justice M.S. Ramachandra Rao,Chief Justice.The Hon’ble Ms. Justice Jyotsna Rewal Dua, Judge. Whether approved for reporting?[1] For the applicant/appellant : Mr. Neeraj Sharma and Mr. Ishaan Kashyap, Advocates. For the respondent : Mr. Vishal Mohan Sr. Advocate with Mr. Sushant Keprate, Mr. Aditya Sood, Mr. Praveen Sharma, Advocates. For the respondent M.S. Ramachandra Rao (Chief Justice)(Oral) OMP no.61/2023 For the reasons assigned in the application, the same is allowed and delay in refiling the appeal is condoned. The application is disposed of accordingly. OMP(M) no.14/2023 This application is filed seeking condonation of delay of 1085 days in filing the appeal under Section 260-A of the Income Tax 1Whether reporters of the local papers may be allowed to see the judgment? Act, 1961 challenging the order dt.11.10.2019 passed in M.A.99/Chd/2019 filed in ITA no.885/Chd/2017 for the assessment year2012-2013. 2.From the facts narrated by the applicant, it appears that the assessing officer initially passed an order on 30.01.2015 underSection 143(3) of the Income Tax Act 1961 and assessed the income ofthe respondent-asseessee at Rs.4,40,99,840/-. 3.This was challenged in an appeal by the respondent andthe said appeal was partly allowed on 30.03.2017 by the Commissionerof Income Tax (Appeals), Shimla, in Appeal No. IT/73,286,283/14-15/Sml. 4.Against the said order, the respondent-assessee filed anappeal being ITA No.885/Chd/2017 before the Income Tax AppellateTribunal, Chandigarh. The said appeal was allowed on 06.12.2018 anddeduction under Section 80IC was granted to the assessee atRs.6,79,25,673/-. 5.Questioning the said order, the department filed IncomeTax Appeal no.10/2019 before this Court on 16.04.2019 within time. 6.It appears that Income Tax Appellate Tribunal thenrecalled its order dt. 06.12.2018 on 11.10.2019 in MA no.99/Chd/2019 granting 100% deduction under Section 80IC in respect of Unit-III ofthe respondent. 7.current appeal. This is the order, which is sought to be challenged in the 8.We may also point that on 28.06.2022, Income Tax Appeal no.10/2019 previously filed before this Court, was declared ashaving become infructuous on account of the modification made in MAno.99/Chd/2019 by the Income Tax Appellate Tribunal on 11.10.2019and liberty was granted by this Court to file afresh. 9.The instant appeal came to be filed on 12.10.2022 by the appellant. 10.In the application seeking condonation of delay filedunder Section 5 of the Limitation Act, 1963, the applicant/appellantcontended that the appeal has to be treated as one within time from28.06.2022, when Income Tax Appeal no.10/2019 was disposed of asinfructuous by this Court. It is also contended that the delay is neitherwillful nor intentional. 11.We may point out that Income Tax Appeal no.10/2019had no doubt become infructuous in view of modification of the order challenged therein (dt. 06.12.2018) by the Income Tax AppellateTribunal by passing a fresh order on 11.10.2019. 12.The appellant had a right to question the order passed on11.10.2019, by filing appeal under Section 260-A of the Act, within theperiod of 120 days prescribed under the Income Tax Act. appellant. 10.In the application seeking condonation of delay filedunder Section 5 of the Limitation Act, 1963, the applicant/appellantcontended that the appeal has to be treated as one within time from28.06.2022, when Income Tax Appeal no.10/2019 was disposed of asinfructuous by this Court. It is also contended that the delay is neitherwillful nor intentional. 11.We may point out that Income Tax Appeal no.10/2019had no doubt become infructuous in view of modification of the order challenged therein (dt. 06.12.2018) by the Income Tax AppellateTribunal by passing a fresh order on 11.10.2019. 12.The appellant had a right to question the order passed on11.10.2019, by filing appeal under Section 260-A of the Act, within theperiod of 120 days prescribed under the Income Tax Act. 13.The said period ended on 08[th] February, 2020. Thereafterfrom around 15[th] March, 2020 the Covid Pandemic started, and in viewof the same, the Hon’ble Supreme Court in its order dt. 10.01.2022titled Re: Conginzance for Extension of Limitation directed that theperiod from 15.03.2020 till 28.02.2022 would stand excluded for thepurposes of limitation as may be prescribed under any general orspecial laws in respect of all judicial or quasi-judicial proceedings. Itfurther stated that if limitation had expired during the period between15.03.2020 till 28.02.2022 notwithstanding the actual balance period oflimitation remaining, all persons shall have a limitation period of 90days from 01.03.2022. 14.However, in the instant case, the limitation havingexpired prior to 15.03.2020 on 08.02.2020 itself, the applicant cannotget the benefit of the said period of 90 days on 28.02.2022. 15.Admittedly, the instant appeal has been preferred on12.10.2022, 224 days after 28.02.2022. No valid explanation for thisperiod of delay is mentioned in the application. We are also of theopinion that the date on which Income Tax Appeal no.10/2019 wasdisposed of as infructuous on 28.06.2022 had no relevance, since theorder impugned in that ITA and in the instant ITA would be differentorders. 16. In this regard, another judgment being 2012 (3) SCC 563(Office Of The Chief Post Master & Ors vs, Living Media IndiaLtd.& Anr), itwas held:- “26. In spite of affording another opportunity to file better affidavitby placing adequate material, neither the Department nor theperson in-charge has filed any explanation for not applying thecertified copy within the prescribed period. The other datesmentioned in the affidavit which we have already extracted, clearlyshow that there was delay at every stage and except mentioning thedates of receipt of the file and the decision taken, there is noexplanation as to why such delay had occasioned. Though it wasstated by the Department that the delay was due to unavoidablecircumstances and genuine difficulties, the fact remains that fromday one the Department or the person/persons concerned have notevinced diligence in prosecuting the matter to this Court by takingappropriate steps. 27. It is not in dispute that the person(s) concerned were wellaware or conversant with the issues involved including theprescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim thatthey have a separate period of limitation when the Department waspossessed with competent persons familiar with court proceedings.In the absence of plausible and acceptable explanation, we areposing a question why the delay is to be condoned mechanicallymerely because the Government or a wing of the Government is aparty before us. 27. It is not in dispute that the person(s) concerned were wellaware or conversant with the issues involved including theprescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim thatthey have a separate period of limitation when the Department waspossessed with competent persons familiar with court proceedings.In the absence of plausible and acceptable explanation, we areposing a question why the delay is to be condoned mechanicallymerely because the Government or a wing of the Government is aparty before us. 28. Though we are conscious of the fact that in a matter ofcondonation of delay when there was no gross negligence ordeliberate inaction or lack of bonafide, a liberal concession has tobe adopted to advance substantial justice, we are of the view that inthe facts and circumstances, the Department cannot take advantageof various earlier decisions. The claim on account of impersonalmachinery and inherited bureaucratic methodology of makingseveral notes cannot be accepted in view of the moderntechnologies being used and available. The law of limitationundoubtedly binds everybody including the Government.” 17. Since we are satisfied that there has been negligence on the part of the applicant/appellant in filing the appeal within the timeprescribed by law, this application is dismissed. Consequently, theappeal is dismissed. ( M.S. Ramachandra Rao ) Chief Justice (Jyotsna Rewal Dua)Judge