The Commissioner Of Income Tax -14, Mumbai v. M/S. Parsi Diary Farm

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 2100 OF 2008IN INCOME TAX APPEAL (L) NO. 1541 OF 2008 The Commissioner of Income Tax-8, Mumbai).......Appellantversus M/s. Dimple Drums & Barriers Ltd. Mumbai)....... Respondant. ALONGWITH NOTICE OF MOTION NO. 2179 OF 2008IN INCOME TAX APPEAL (L) NO. 1675 OF 2008 The Commissioner of Income Tax-8, Mumbai).......Appellantversus Omarsons Apparels Pvt.Ltd)....... Respondant. ALONGWITHNOTICE OF MOTION NO. 2396 OF 2008IN INCOME TAX APPEAL (L) NO. 967 OF 2008 The Director of Income Tax (Exemptions),Mumbai... AppellantVersus Saraswat Brahman Samaj, Mumbai. ..... Respondent. ALONGWITH NOTICE OF MOTION NO. 2580 OF 2008IN INCOME TAX APPEAL (L) NO. 1692 OF 2008 The Commissioner of Wealth Tax VI, Mumbai... Appellant VersusM/s. Aristo Realty Developers Ltd. Mumbai ..... Respondent. ALONGWITHNOTICE OF MOTION NO. 2581 OF 2008 IN INCOME TAX APPEAL (L) NO. 1693 OF 2008 The Commissioner of Wealth Tax VI, Mumbai... AppellantVersus M/s. Aristo Realty Developers Ltd. Mumbai ..... Respondent. ALONGWITH NOTICE OF MOTION NO. 2650 OF 2008IN INCOME TAX APPEAL (L) NO. 2243 OF 2008 The Commissioner of Income Tax -14, Mumbai... Appellant Versus M/s. Parsi Diary Farm ..... Respondent. ALONGWITH NOTICE OF MOTION NO. 2651 OF 2008IN INCOME TAX APPEAL (L) NO. 2246 OF 2008 The Commissioner of Income Tax-14, Mumbai... Appellant Versus M/s. Parsi Dairy Farm ..... Respondent. ALONGWITH NOTICE OF MOTION NO. 2652 OF 2008 IN INCOME TAX APPEAL (L) NO. 2242 OF 2008 The Commissioner of Income Tax -14 Mumbai... Appellant Versus M/s. Parsi Dairy Farm, Mumbai ..... Respondent. ALONGWITHNOTICE OF MOTION NO. 2653 OF 2008 IN INCOME TAX APPEAL (L) NO. 2244 OF 2008 The Commissioner of Income Tax-14, Mumbai... AppellantVersus M/s. Parsi Dairy Farm, Mumbai ..... Respondent. ALONGWITH NOTICE OF MOTION NO. 2693 OF 2008IN INCOME TAX APPEAL (L) NO. 2020 OF 2008 The Commissioner of Income Tax-9, Mumbai... AppellantVersus M/s. Vasparr Containers ltd. Mumbai ..... Respondent. ALONGWITHNOTICE OF MOTION NO. 2694 OF 2008IN INCOME TAX APPEAL (L) NO. 2245 OF 2008 The Commissioner of Income Tax-14, Mumbai... AppellantVersus M/s. Parsi Dairy Farm, Mumbai ..... Respondent. ALONGWITH NOTICE OF MOTION NO. 2704 OF 2008 IN INCOME TAX APPEAL (L) NO. 2017 OF 2008 The Commissioner of Income Tax-9, Mumbai... Appellant Versus M/s. Sarada Papers Ltd. Mumbai ..... Respondent. ALONGWITH NOTICE OF MOTION NO. 2705 OF 2008 IN INCOME TAX APPEAL (L) NO. 2018 OF 2008 The Commissioner of Income Tax-9, Mumbai... AppellantVersus M/s. Vaspar Fischer Ltd. Mumbai ..... Respondent. ALONGWITH NOTICE OF MOTION NO. 2707 OF 2008IN INCOME TAX APPEAL (L) NO. 2022 OF 2008 The Commissioner of Income Tax-9, Mumbai... AppellantVersus M/s. Suashish jewellery Ltd. Mumbai ..... Respondent. ALONGWITH NOTICE OF MOTION NO. 2775 OF 2008IN INCOME TAX APPEAL (L) NO. 2445 OF 2008 The Commissioner of Income Tax, Mumbai... Appellant Versus M/s. Bassein Drugs Ltd. Mumbai ..... Respondent. ALONGWITH NOTICE OF MOTION NO. 2781 OF 2008 IN INCOME TAX APPEAL (L) NO. 2348 OF 2008 The Commissioner of Income Tax-9, Mumbai... AppellantVersus M/s. Tanna Construction & Development Pvt. Ltd., Mumbai ..... Respondent. ALONGWITH NOTICE OF MOTION NO. 2783 OF 2008IN INCOME TAX APPEAL (L) NO. 2349 OF 2008 The Commissioner of Income Tax-9, Mumbai... Appellant Versus The Commissioner of Income Tax-9, Mumbai... AppellantVersus M/s. Suashish jewellery Ltd. Mumbai ..... Respondent. ALONGWITH NOTICE OF MOTION NO. 2775 OF 2008IN INCOME TAX APPEAL (L) NO. 2445 OF 2008 The Commissioner of Income Tax, Mumbai... Appellant Versus M/s. Bassein Drugs Ltd. Mumbai ..... Respondent. ALONGWITH NOTICE OF MOTION NO. 2781 OF 2008 IN INCOME TAX APPEAL (L) NO. 2348 OF 2008 The Commissioner of Income Tax-9, Mumbai... AppellantVersus M/s. Tanna Construction & Development Pvt. Ltd., Mumbai ..... Respondent. ALONGWITH NOTICE OF MOTION NO. 2783 OF 2008IN INCOME TAX APPEAL (L) NO. 2349 OF 2008 The Commissioner of Income Tax-9, Mumbai... Appellant Versus M/s. Tanna Construction & Development Pvt. Ltd., Mumbai ..... Respondent. ALONGWITHNOTICE OF MOTION NO. 2797 OF 2008IN INCOME TAX APPEAL (L) NO. 2442 OF 2008 The Commissioner of Income Tax-9(1), Mumbai... Appellant Versus M/s. Ciba Speciality Chemicals (India) Ltd., Mumbai ..... Respondent. ALONGWITH NOTICE OF MOTION NO. 2799 OF 2008 IN INCOME TAX APPEAL (L) NO. 2443 OF 2008 The Commissioner of Income Tax-9, Mumbai... AppellantVersus M/s. Gharda Chemicals Ltd. Mumbai ..... Respondent. ALONGWITH NOTICE OF MOTION NO. 2800 OF 2008IN INCOME TAX APPEAL (L) NO. 2446 OF 2008 The Commissioner of Income Tax-9(1), Mumbai... AppellantVersus M/s. Gharda Chemicals Ltd. Mumbai ..... Respondent. ALONGWITH NOTICE OF MOTION NO. 2801 OF 2008IN INCOME TAX APPEAL (L) NO. 2440 OF 2008 The Commissioner of Income Tax-9(1), Mumbai... AppellantVersus M/s. Ajanta Pharma Ltd. Mumbai ..... Respondent. ALONGWITH NOTICE OF MOTION NO. 2802 OF 2008IN INCOME TAX APPEAL (L) NO. 2441 OF 2008 The Commissioner of Income Tax-9(1), Mumbai... AppellantVersus M/s. Condood Agencies Ltd. Mumbai ..... Respondent. ALONGWITH NOTICE OF MOTION NO. 2803 OF 2008IN INCOME TAX APPEAL (L) NO. 2444 OF 2008 The Commissioner of Income Tax-9(1), Mumbai... AppellantVersus M/s. Aasu Exim Pvt. Ltd. Mumbai ..... Respondent. ALONGWITHNOTICE OF MOTION NO. 2877 OF 2008IN INCOME TAX APPEAL (L) NO. 2150 OF 2008 The Commissioner of Income Tax-21, Mumbai... AppellantVersus Shri Ramnik M. Chawda ..... Respondent. ALONGWITH NOTICE OF MOTION NO. 2878 OF 2008IN INCOME TAX APPEAL (L) NO. 2149 OF 2008 The Commissioner of Income Tax-21, Mumbai... Appellant Versus Shri Dhankumar S. Parekh (HUF), Mumbai ..... Respondent. ALONGWITH NOTICE OF MOTION NO. 2939 OF 2008 IN INCOME TAX APPEAL (L) NO. 1233 OF 2008 The Commissioner of Income Tax, (Exemption) Mumbai... Appellant Versus Maharashtra State Road Transport Corporation Ltd. Mumbai ..... Respondent. ALONGWITH NOTICE OF MOTION NO. 2940 OF 2008 IN INCOME TAX APPEAL (L) NO. 1232 OF 2008 The Commissioner of Income Tax , (Exemption),Mumbai... Appellant Versus M.P. Gandhi Trust , Mumbai ..... Respondent. ALONGWITH NOTICE OF MOTION NO. 2941 OF 2008 IN INCOME TAX APPEAL (L) NO. 1234 OF 2008 The Commissioner of Income Tax, (Exemption), Mumbai... Appellant Versus M.P. Gandhi Trust, Mumbai ..... Respondent. ALONGWITH NOTICE OF MOTION NO. 2982 OF 2008 IN INCOME TAX APPEAL (L) NO. 2324 OF 2008 The Commissioner of Income Tax-12, Mumbai... AppellantVersus M/s. General Export Enterprises,Mumbai ..... Respondent. ALONGWITH NOTICE OF MOTION NO. 2983 OF 2008 IN INCOME TAX APPEAL (L) NO. 2267 OF 2008 The Commissioner of Income Tax , (Exemption),Mumbai... Appellant Versus M.P. Gandhi Trust , Mumbai ..... Respondent. ALONGWITH NOTICE OF MOTION NO. 2941 OF 2008 IN INCOME TAX APPEAL (L) NO. 1234 OF 2008 The Commissioner of Income Tax, (Exemption), Mumbai... Appellant Versus M.P. Gandhi Trust, Mumbai ..... Respondent. ALONGWITH NOTICE OF MOTION NO. 2982 OF 2008 IN INCOME TAX APPEAL (L) NO. 2324 OF 2008 The Commissioner of Income Tax-12, Mumbai... AppellantVersus M/s. General Export Enterprises,Mumbai ..... Respondent. ALONGWITH NOTICE OF MOTION NO. 2983 OF 2008 IN INCOME TAX APPEAL (L) NO. 2267 OF 2008 The Commissioner of Income Tax-12, Mumbai... AppellantVersus Mrs. Pratibha J. Shah ..... Respondent. ALONGWITHNOTICE OF MOTION NO. 2986 OF 2008 IN INCOME TAX APPEAL (L) NO. 2424 OF 2008 The Commissioner of Income Tax-12, Mumbai... AppellantVersus M/s. International Export & Import Enterprises,Mumbai ..... Respondent. ALONGWITH NOTICE OF MOTION NO. 2987 OF 2008 IN INCOME TAX APPEAL (L) NO. 2287 OF 2008 The Commissioner of Income Tax-12, Mumbai... Appellant Versus Mr. Janak S. Rangawalla. Mumbai ..... Respondent. ALONGWITHNOTICE OF MOTION NO. 2988 OF 2008IN INCOME TAX APPEAL (L) NO. 2288 OF 2008 The Commissioner of Income Tax-12, Mumbai... AppellantVersus M. Visvesvaraya Industrial and Development Research Centre,Mumbai ..... Respondent. ALONGWITHNOTICE OF MOTION NO. 2989 OF 2008IN INCOME TAX APPEAL (L) NO. 2323 OF 2008 The Commissioner of Income Tax-12, Mumbai... Appellant Versus Harsha Hitesh Jhaveri ..... Respondent. ALONGWITH NOTICE OF MOTION NO. 2990 OF 2008 IN INCOME TAX APPEAL (L) NO. 2285 OF 2008 The Commissioner of Income Tax-12, Mumbai... AppellantVersus M/s. Shree Plasticizers, Mumbai ..... Respondent. ALONGWITHNOTICE OF MOTION NO. 2999 OF 2008IN INCOME TAX APPEAL (L) NO. 529 OF 2008 The Commissioner of Income Tax-12, Mumbai... Appellant Versus M/s. Tulsiani Sumer Associates, Mumbai ..... Respondent. ALONGWITH NOTICE OF MOTION NO. 2828 OF 2008IN INCOME TAX APPEAL (L) NO. 2214 OF 2008 Cifco Finance Ltd., Mumbai... Appellant Versus The Income Tax Officer (TDS)-11(11),Mumbai ..... Respondent. ALONGWITH NOTICE OF MOTION NO. 2829 OF 2008 IN INCOME TAX APPEAL (L) NO. 2213 OF 2008 Cifco Finance Ltd. , Mumbai... Appellant Versus The Income Tax Officer (TDS)-11(11),Mumbai..... Respondent. ALONGWITHNOTICE OF MOTION NO. 2830 OF 2008IN INCOME TAX APPEAL (L) NO. 2212 OF 2008 Cifco Finance Ltd. , Mumbai... Appellant Versus The Income Tax Officer (TDS)-11(11),Mumbai..... Respondent. Mr. Suresh Kumar for appellant inN.M.Nos. 2100, 2179, 2580,2581, 2775, 2797, 2799, 2800 2801, 2802 & 2803/08 in ITXALNos. 1541, 1675 1692, 1693, 2445, 2442, 2443, 2446 2440,2441 & 2444/08. Mr. S. G. Dalal for applicant in Notice of Motion no. 2828/08 inITXAL 2214/08 a/w. N.M. 2829/08 in ITXAL 2213/08 and N.M.2830/08 in ITXAL 2212/08. Mr/ D.K. Kanwal i/b Mr. P.S.Sahadevan for appellant in N.M.Nos. 2650, 2651, 2652, 2653 and 2694/08 in ITXAL Nos. 2243,2246,2242, 2244 & 2245/08. Mr. J.S. Saluja for appellant inN.M.Nos. 2693, 2704, 2705, 2706& 2707/08 in ITXAL Nos. 2020, 2017, 2018, 2019 & 2022/08. Mr. P.S. Sahadevan for appellant in N.M. Nos. 2877, 2878, 2939,2940, 2941, 2982, 2983, 2986, 2987, 2988, 2989, 2990 &2999/08 in ITXAL Nos. 2150, 2149, 1233, 1232, 1234, 2324,2267, 2424, 2287, 2288, 2323, 2285 & 529/08 Mr. Vimal Gupta for respondent in N.M.Nos. 2828, 2829 &2830/08 in ITXAL Nos. 2214, 2213 & 2212/08. Mr. A.S. Kode a/w. Mr. R.D. Patil i/b. Ajay Misar & Co. for Mr/ D.K. Kanwal i/b Mr. P.S.Sahadevan for appellant in N.M.Nos. 2650, 2651, 2652, 2653 and 2694/08 in ITXAL Nos. 2243,2246,2242, 2244 & 2245/08. Mr. J.S. Saluja for appellant inN.M.Nos. 2693, 2704, 2705, 2706& 2707/08 in ITXAL Nos. 2020, 2017, 2018, 2019 & 2022/08. Mr. P.S. Sahadevan for appellant in N.M. Nos. 2877, 2878, 2939,2940, 2941, 2982, 2983, 2986, 2987, 2988, 2989, 2990 &2999/08 in ITXAL Nos. 2150, 2149, 1233, 1232, 1234, 2324,2267, 2424, 2287, 2288, 2323, 2285 & 529/08 Mr. Vimal Gupta for respondent in N.M.Nos. 2828, 2829 &2830/08 in ITXAL Nos. 2214, 2213 & 2212/08. Mr. A.S. Kode a/w. Mr. R.D. Patil i/b. Ajay Misar & Co. for Respondents in N.M. No. 2803/08 in ITXAL 2444/08. Mr. J.D. Mistry a/w. A.K. Jasani for resppndent in N.M.Nos.2580, 2581, 2650, 2651, 2652, 2653, 2694 & 2801/08 in ITXALNos. 1692, 1693, 2243, 2246, 2242, 2244, 2245 &2440/08. Mr. Subhash Shetty a/w Mr. Hiro Rai for the respondent in N.M.No. 2878/08 in ITXAL 2149/08. Ms. V.B. Patel for Respondent in N.M. No.2775/08 in ITXAL2445/08 & N.M. No.2781/08 in ITXAL 2348/08. CORAM: SWATANTER KUMAR, C.J., & A.P. DESHPANDE, J. JUDGMENT RESERVED ON: 1st SEPTEMBER, 2008. JUDGMENT PRONOUNCED ON:25thSEPTEMBER, 2008JUDGMENT (Per A.P.Deshpande, J.): 1.By this order, we dispose of 40 Notice of Motions, 37taken out by the Commissioner of Income Tax/Director of IncomeTax/Appellant and three Notice of Motions being Notice ofMotion Nos. 2828, 2829 & 2830 of 2008 in Income Tax Appeal(L) Nos. 2214,2213 & 2212 of 2008 taken out by the assessee.All these Notice of Motions are for condonation of delay. In allthese Appeals, the delay ranges from one year to five years. Sofar as the Notice of Motions taken out by the Director of IncomeTax, the affidavits filed in support of the Motion set out identical grounds for condonation of delay. It may be useful at this stageto reproduce the extract from one of such affidavit. 1) The order passed by the ITAT is dated 16-10-2006 2) It was received by the office of the Appellanton 13-11-2006. 3) Thereafter the matter has been referred forcomments of the Assessing Officer. 4) After receipt of the comments, papers were placed before the appellant, along with therecord of the case and after perusal of the papersand the record, the Appellant was satisfied that acase is made out for filing of an appeal in theHigh Court. 5) Appellant granted his approval for filing ofappeal on 31-7-2008. 6) The department then appointed a counsel forfiling of the appeal. 7) The last date of filing of appeal was 1-2-2007.In the circumstances delay of 367 days haveoccurred in filing of the present appeal. 2.No particulars whatsoever are furnished in the affidavitto enable this Court to hold that sufficient cause has been shownfor condonation of delay in filing of the appeal. In all the casesfiled by the Department, barring change in the dates, the format is 4) After receipt of the comments, papers were placed before the appellant, along with therecord of the case and after perusal of the papersand the record, the Appellant was satisfied that acase is made out for filing of an appeal in theHigh Court. 5) Appellant granted his approval for filing ofappeal on 31-7-2008. 6) The department then appointed a counsel forfiling of the appeal. 7) The last date of filing of appeal was 1-2-2007.In the circumstances delay of 367 days haveoccurred in filing of the present appeal. 2.No particulars whatsoever are furnished in the affidavitto enable this Court to hold that sufficient cause has been shownfor condonation of delay in filing of the appeal. In all the casesfiled by the Department, barring change in the dates, the format is the same and grounds are identical. We are alive to the fact thatthe Government departments need some time to process thematter and take a decision in regard to filing of appeals. Taking alenient view though the reasons assigned were not veryconvincing, we have condoned the delay wherein the period ofdelay was less than one year. In the present matters, the delayranges from the period of one year to five years. The verypurpose of laying down limitation in a statue is to obtain finalityto the order passed. Uncertainty must come to an end. The morethe delay the better the explanation for condonation would beexpected. We do not expect that every days delay ought to beexplained. The courts are expected to take a pragmatic view thana pedantic. However. It cannot be lost sight of that onpronouncement of a judgment and after expiry of the period oflimitation as provided under the statute, rights accrue in favour ofthe other side and the said rights cannot be very easily destroyedif the delay is unexplained and caused on account of inactionand/or negligence on the part of a party applying for condonationof delay. A litigant is expected to be vigilant and diligent. A partywho sleeps over his rights and does not act diligently, cannot beshown undue indulgence. In all the appeals filed by theDepartment, the delay has not been satisfactorily explained. Nodetails are furnished which could enable the court to examineaccountability. Vague averments are made in the affidavit with no particulars and no proper explanation. The affidavits in theseNotice of Motions to the extent they relate to the department arestereotype, and filed in most casual manner. This Court hasconsidered the question of condonation of delay in a batch ofNotice of Motion No. 2281/08 in Income Tax Appeal (Lodging)No. 1814/08 along with connected Notice of Motions. For thereasons recorded in the said Notice of Motion by order dated 29[th]August 2008 and having come to the conclusion that nosatisfactory explanation has been given, and as the applicantshave failed to assign sufficient cause which would enable thiscourt to condone the delay by having recourse of section 5 of theLimitation Act, the Notice of Motions are dismissed. 3. Even in the affidavit in support of the Notice of Motionfiled by the Assesssees, the delay has not been properly explainedand no sufficient cause has been shown for condoning the delay. 4.In the result, all the Notice of Motion Nos. 2100, 2179,2396, 2580, 2581, 2650, 2651, 2652, 2653, 2693, 2694, 2704,2705, 2706, 2707, 2775, 2781, 2783, 2797, 2799, 2800, 2801,2802, 2803, 2877, 2878, 2939, 2940, 2941, 2982, 2983, 2986,2987. 2988, 2989, 2990, 2999, 2828, 2829 & 2830 of 2008 arerejected. Resultantly Income Tax Appeal (Lodging) Nos.ITXAL Nos. 1541, 1675, 967, 1692, 1693, 2243, 2246, 2242,2244, 2020, 2245, 2017, 2018, 2019, 2022, 2775, 2348, 2349, 2442, 2443, 2446, 2440, 2441, 2444, 2150, 2149,1233, 1232, 1234, 2324, 2267, 2424, 2287, 2288, 2323, 2285,529, 2214, 2213 & 2212 of 2008 are dismissed. CHIEF JUSTICE A.P. DESHPANDE, J.