The Cit-18 v. M/S.hyd.air Engineering Works (Bombay

( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3391 OF 2008 NOTICE OF MOTION NO.3391 OF 2008 NOTICE OF MOTION NO.3391 OF 2008 IN IN IN INCOME TAX APPEAL (L) NO.2506 OF 2008 INCOME TAX APPEAL (L) NO.2506 OF 2008 INCOME TAX APPEAL (L) NO.2506 OF 2008 The CIT-18 .. Appellant Vs. M/s.Hyd.Air Engineering Works (Bombay) .. Respondent Mr.K.R.Chaudhary for the Appellant. Ms.Suvarna Shendkar i/by Ms.Kranti Sathe & Amruta Sathe for the Respondent. CORAM :- DR.S.RADHAKRISHNAN & V.C.DAGA, JJ. DATE : 17th November, 2008 P.C. P.C. 1. Heard the learned Counsel for the parties. By this Notice of Motion, the Appellant-Revenue is seeking condonation of 836 days delay caused in filing the Appeal. 2. It has come to our notice that the tax effect involved in this Appeal is only Rs.2,04,825/- which is much less than Rs.4 lakhs. In fact, the CBDT’s Circular is binding on the Appellant-Revenue, wherein it is clearly mentioned by the CBDT that the Department shall not file any appeal when the tax effect is less than Rs.4 lakhs. Over and above, based on the CBDT’s Circular, this Court in two-three judgments, has also categorically held that the appeal shall not be filed when the tax effect is less than Rs.4 lakhs. Inspite of the same, the present appeal has been lodged by the ( 2 ) Appellant-Revenue on 1st August, 2008 thereby discarding the judgments of this Court as well as the CBDT’s Circular. 3. On perusal of the affidavit in support we find that the Appeal is against the ITAT’s order dated 14.10.2005; the learned Commissioner of Income Tax had granted approval for filing the Appeal on 19.4.2006, and though the draft memo of Appeal was received by the Department on 21.08.2006, the Appeal came to be filed belatedly on 1.8.2008. It is stated in the aforesaid affidavit in support that due to want of original case record the filing of Appeal was withheld. It is also stated in the affidavit that various efforts were made to locate the original case record, and finally the record came to be reconstructed by obtaining copies of assessment orders. It is also stated in the affidavit in support of the Notice of Motion that the delay caused in filing the Appeal is for the reasons beyound the control of Appellant’s office. The aforesaid reasons given for delay are insufficient and cannot be justified. The affidavit appears to be palpably false because the Appeal could not have been drafted if the original record was not with the Appellant-Revenue. Hence, we are not satisfied with the reasons given for delay caused in filing the Appeal. 4. In view of the aforesaid facts and circumstances, ( 3 ) the concerned Commissioner of Income Tax-18, 5th Floor, Piramal Chambers, Parel, Mumbai 400 012, is directed to pay costs quantified at Rs.5000/- within a period of two weeks from today, from his personal funds. 5. The Notice of Motion is totally devoid of merits and hence stands dismissed. 6. In view of dismissal of the Notice of Motion, the Appeal (L) No.2506/2008 also stands dismissed. 7. Mr.Chaudhary, the learned Counsel appearing for the Appellant-Revenue undertakes to communicate today’s order to the concerned Commissioner of Income Tax today itself. The said undertaking is accepted. (V.C.DAGA,J.) (DR.S.RADHAKRISHNAN,J.) (V.C.DAGA,J.) (DR.S.RADHAKRISHNAN,J.)