The Commissioner Of Income Tax – 5, Mumbai v. M/S.essar Projects Limited, Mumbai

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2257 OF 2011 IN INCOME TAX APPEAL NO.450 OF 2010 The Commissioner of Income Tax – 5, Mumbai Versus M/s.Essar Projects Limited, Mumbai ..Appellant. ..Respondent. Ms.Suchitra Kamble for the appellant.Mr.Atul K. Jasani for the respondent. CORAM : J.P. Devadhar &A.R. Joshi, JJ. DATE : 22[nd] November 2011 P.C. : 1.In this case, Income Tax Appeal No.450 of 2010 filed by the Revenue was delayed by one day. By an order dated 22[nd] July 2009, this Court dismissed the said appeal inter alia on the ground that the Revenue has not taken out a Notice of Motion seeking condonation of delay and further that this Court has no jurisdiction to condone the delay. 2.Challenging the said order, the Revenue moved the Apex Court and by an order dated 10[th] May 2011, the Apex Court permitted the Revenue to take out a Notice of Motion before this Court seeking condonation of delay within eight weeks from 10[th] May 2011. The Apex Court further held that if the Department fails to take out the Notice of Motion within eight weeks from 10[th] May 2011, then the matter will not be considered by the High Court. 3.As per the aforesaid order of the Apex Court, the Revenue ought to have filed the present Notice of Motion on or before 5[th] July 2011, however, the present Notice of Motion is filed belatedly on 29[th] July 2011. In these circumstances, since the Notice of Motion is taken out beyond the time permitted by the Apex Court, we cannot consider the present Notice of Motion. Accordingly, the Notice of Motion is dismissed. 3.It is relevant to note that revenue involved in this case is Rs.14.80 crores. It was the duty of the officers of the Income Tax Department to file appeal in time so as to protect the interests of the Revenue. However, the officers of the Department failed and neglected to do the needful and filed the appeal beyond the time prescribed under the Act. On appeal filed by the Revenue, the Apex Court permitted the Revenue to take out a Notice of Motion seeking condonation of delay and granted them eight weeks time to file the Notice of Motion with a clear direction that if the Notice of Motion is not filed within eight weeks, the same shall not be heard by this Court. In spite of the clear directions given by the Apex Court, the Revenue has failed and neglected to file the Notice of Motion within the time stipulated by the Apex Court. In our opinion, this is a clear case of dereliction of duty and gross negligence on the part of the concerned officer / officers of the Revenue, on account of which the appeal filed by the Revenue is dismissed for delay and revenue loss to the tune of Rs.14.80 crores is caused to the exchequer. 5.In these circumstances, the Chief Commissioner of Income Tax, Mumbai is directed to investigate into the matter and fix the responsibility for the revenue loss on the concerned officer and take steps to recover the same from the said officer. The registry is directed to forward a copy of this order to the Chief Commissioner of Income Tax, Mumbai as also to the Chairman, Central Board of Direct Taxes, New Delhi. 5.Since the Notice of Motion seeking condonation of delay is dismissed, appeal papers be consigned to the record department. (A.R. Joshi, J.)(J.P. Devadhar, J.)