Shantilal v. The Commissioner Of Income Tax,Aurangabad

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO.14778 OF 2018 IN INCOME TAX APPEAL NO.42 OF 2013 Shantilal S/o Govardhan Peety..APPLICANT VERSUS The Commissioner of Income Tax,Aurangabad..RESPONDENT Mr S. M. Godsay, Advocate for applicant;Mr A. M. Sharma, Advocate for respondent CORAM : PRASANNA B. VARALE AND MANGESH S. PATIL,JJ. DATE : 12th DECEMBER, 2018 ORAL ORDER : Heard Mr. Godsay, learned Counsel appearing for the applicant and Mr. Alok Sharma,learned Counsel appearing for the respondent. 2.By way of present application, the applicant prays for directions to the appellant towithdraw the appeal in view of the Circular No.3/2018 dated 11th July, 2018 issued by the CentralGovernment. 14778.18ca 3.Mr. Godsay, learned Counsel appearing forthe applicant vehemently submitted that in view ofCircular No. 3/2018 dated 11th July, 2018, in bunchof thirty seven appeals, the respondent-appellantwithdrew nine appeals. It was then submitted by Mr.Godsay, learned Counsel that in view of policyunder Circular dated 11th July, 2018, the appealfiled against the present applicant also ought tohave been withdrawn, as such, he prays for allowingthe application in terms of prayer clause (B). 4.We are unable to accept the submission ofMr. Godsay, learned Counsel for two reasons;firstly, the respondent has no right to seek adirection against the appellant to withdraw theappeal, as it is choice of the appellant, whetherto prosecute the appeal or withdraw the appeal. Itis the complete choice of the appellant. Thesecond reason is, the applicant refers Circulardated 11th July, 2018. Now, this Circular is,directions issued by the superior officer to the 14778.18ca subordinates to take appropriate decision in casesof filing of appeal or in cases of pending appeals. 5.Mr. Alok Sharma, learned Counsel also pointed out to us that there is modificationeffected in the Circular by another Circular dated28th February, 2018 and this Circular dated 28thFebruary, 2018 makes it clear that the departmentwould contest certain appeals and it is not ageneral decision of withdrawing each and everyappeal filed by the revenue. 6.As we are not inclined to entertain theapplication on the above referred grounds, theapplication deserves to be dismissed and same isaccordingly dismissed. ( MANGESH S. PATIL )JUDGE (PRASANNA B. VARALE) JUDGE Tupe