The Commissioner Of Income Tax – 7, Mumbai v. M/S.swarnim Caplease Services Private Limited

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.481 OF 2010 IN INCOME TAX APPEAL (L) NO.1633 OF 2005 The Commissioner of Income Tax – 7, Mumbai ..Appellant. Versus M/s.Swarnim Caplease Services Private Limited..Respondent. Mr.Suresh Kumar for the appellant.Mr.B.V. Jhaveri for the respondent. CORAM : J.P. Devadhar & A.A. Sayed, JJ. P.C. : DATE : 25[th] April, 2011. 1.This Notice of Motion is taken out seeking condonation of 332 days delay in filing the present Notice of Motion and for restoration of the appeal which was dismissed for non-removal of office objections pursuant to the conditional order of this Court dated 29-01-2008. 2.In this case, the appeal itself was filed belatedly and on a Notice of Motion taken out by the appellant, this Court by order dated 29-01-2008 2nma481-10 condoned the delay and directed the appellant to remove the office objections within the stipulated time failing which the appeal was to be dismissed without reference to Court. Since the objections were not removed within the stipulated time, the appeal was dismissed. Hence, this Notice of Motion is taken out seeking condonation of delay of 332 days. 3.Counsel for the assessee submits that the delay is in fact 697 days and not 332 days as wrongly contended by the appellant. He submits that the cause shown in the affidavit in support of the Notice of Motion cannot be said to be sufficient cause so as to condone the delay. It is true that the explanation given by the appellant for condoning the delay is not satisfactory, however, in the facts of the present case since similar appeal filed by the appellant for another assessment year has already been admitted by this Court (According to the counsel for the respondent, the facts in that case are different), in our opinion, it would be just and proper to condone the delay and restore the appeal subject to payment of costs. 4.Accordingly, the delay in filing the Notice of Motion is condoned and the appeal is restored to file, subject to payment of cost of Rs.3,000/- to be paid by the appellant to the respondent within a period of two weeks from today. The appellant shall remove office-objections within a period of one week thereafter. 5.If the cost is paid and office objections are removed within the time stipulated, the appeal shall stand restored to the file and be placed for admission. In case, the amount is not paid and office objections are not removed within the time stipulated, the appeal shall stand dismissed without any further to the Court. 6.The Notice of Motion is disposed off in above terms. No costs. (A.A. Sayed, J.) (J.P. Devadhar, J.)