The Commissioner Of Income Tax-7 } Review v. Dated :- November 15, 2014

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 2580 OF 2012 IN REVIEW PETITION (L) NO. 63 OF 2011ININCOME TAX APPEAL NO. 1054 OF 2010 The Commissioner of Income Tax-7}Review PetitionerversusM/s. Voltas Ltd.}Respondent Mr. Suresh Kumar for the Applicant/Review Petitioner.Mr. Nishant Thakker i/b. M/s. Mulla and Mulla for the Respondent. CORAM :-S.C.DHARMADHIKARI &A.A.SAYED, JJ. DATED :-NOVEMBER 15, 2014 P.C. :- This Notice of Motion was extensively argued on the earlier occasion and we directed that the orders would be passed today. 2)This Notice of Motion filed by the Revenue seeks following reliefs: “(a)This Hon'ble High Court be pleased to condone the delay of 276 days in filing Notice of Motion. (b)That this Hon'ble High Court be pleased to set aside the order dated 22[nd] September, 2011 and be pleased to extend the time to remove the office objection.” 3)It is common ground that the Revenue filed an Appeal in this Court challenging the order passed by the Income Tax Appellate Tribunal dated 20[th] December, 2007. That was in relation to the assessment year 1996-97. This Appeal of the Revenue was filed on 3[rd ]July, 2008. 4)The Registry endorsed two objections on the Memo of Appeal and which are that the Appeal is barred by limitation. The other objection is not so much relevant for our purpose. 5)Finding that at the relevant time there was no provision in the Income Tax Act, 1961 particularly in section 260A, on 23[rd] July, 2009, after hearing both sides, a Division Bench of this Court passed the following order: “1. The appeal which is placed for admission today, was in fact placed for admission on an earlier occasion when conditional order was passed to the effect that all office objections should be removed within the time stipulated therein, failing which the appeal shall stand dismissed without reference to the Court. 2. Admittedly, the office objections have not been removed in the appeal within the stipulated time though the appeal is pending in this Court for sufficiently long time. It is pertinent to note that wherever extension of time for removal of office objections were sought within the period specified, this Court has granted extension of time. However, in all the above matter, neither the objections are removed within the stipulated time nor extension of time is sought for removing the office objections. As a result, the self operative conditional order has become operational and as a consequence thereof the above appeal stood dismissed for want of removal of office objections after the expiry of the stipulated time. 3. Apart from the above, the appeal is timed barred. No Notice of Motion has been taken out seeking condonation of delay. There is also no prayer in the appeal memo seeking condonation of 51 days delay in filing the appeal. 4. Following the decision of the Apex Court in the case of Chaudharana Steels (P) Ltd. V/s. Commissioner of CentralExcise reported in 2009 (238) ELT 705 (S.C.)we have held in the case of CIT V/s. Grasim Industries Ltd. (Notice of Motion No.787 of 2009 in I.T.A. (L) No.3592 2008) decided on 8/7/2009) that this Court has no power to condone the delay in filing an appeal under section 260A of the Income Tax Act, 1961. 5. In this view of the matter, the appeal is dismissed.” 3. Apart from the above, the appeal is timed barred. No Notice of Motion has been taken out seeking condonation of delay. There is also no prayer in the appeal memo seeking condonation of 51 days delay in filing the appeal. 4. Following the decision of the Apex Court in the case of Chaudharana Steels (P) Ltd. V/s. Commissioner of CentralExcise reported in 2009 (238) ELT 705 (S.C.)we have held in the case of CIT V/s. Grasim Industries Ltd. (Notice of Motion No.787 of 2009 in I.T.A. (L) No.3592 2008) decided on 8/7/2009) that this Court has no power to condone the delay in filing an appeal under section 260A of the Income Tax Act, 1961. 5. In this view of the matter, the appeal is dismissed.” 6)As a result of this, the Appeal came to be dismissed. It appears from the record that the Revenue sought review of this order by filing a Review Petition. In the Review Petition, the Revenue urged that the Appeal was barred by 51 days. The Revenue prayed that the order passed by the Division Bench on 23[rd] July, 2009 be recalled and the Revenue be permitted to seek condonation of delay in filing the Appeal under Section 260A of the Income Tax Act by moving an appropriate application. This Review Petition was filed on 7[th] July, 2011. On 22[nd ]September, 2011, this Review Petition was placed before the Prothonotary and Senior Master of this Court and in the presence of the Revenue's Advocate, the following order was passed: “The Appellants and/or their Adv. to remove office objections on the Memo of Appeal and get the same numbered and regd. on or before 07.10.2011, failing which the Memo of Appeal to stand rejected under R.986.” 7)Now, what we find is that though the Revenue had moved an application seeking condonation of delay of 712 days in filing the Review Petition and a Notice of Motion in that behalf being Notice of Motion No. 1838 of 2012 was moved on 24[th] May, 2012, that was unmindful of the fact that the Review Petition was already dismissed by the Registry, as its conditional order dated 22[nd] September, 2011 was not complied with. In a dismissed Review Petition, the Revenue proceeded to move the Notice of Motion seeking condonation of delay in filing thereof. 8)Now, to compound these state of affairs, a Notice of Motion has been placed before us and which seeks the condonation of delay of 276 days in seeking restoration of the Review Petition and thereafter seeks to quash and set aside the conditional order dated 22[nd ]September, 2011. 9)It is on such application that we have heard Shri. Suresh Kumar appearing on behalf of the Revenue and Mr. Nishant Thakker appearing on behalf of the Assessee. We have perused the affidavit in support of this Notice of Motion and in which we find that the only reason given in para 3 is as under: “I say that Review Petitioner had filed the above Review against the order dated 23.07.2009 dismissing the appeal of the Review Petitioner. I say that there was a delay in filing the Review; however, the notice of motion was not filed seeking condonation of delay. As a result of which, the objections raised by the Dept regarding the delay could not be removed. I say that a separate Notice of Motion is being filed seeking condonation of delay in filing the appeal. I say that while checking up the status of the Review on interest on 30.04.2012 it was found that the said review was dismissed for non removal of objections because of the conditional order dated 22.09.2011. I say that the case was earlier handled by Smt. Padma Divekar, Advocate, and thereafter the case was handed over to Advocate Shri Suresh Kumar. I say that the Review Petitioner has a very good case as the Hon'ble Bombay High Court had taken the view in the case of VIP Industries that this Hon'ble High Court had power to review the order and in many cases the order passed dismissing the appeal on account of delay had been restored.” 10)Thus, the Deputy Commissioner of Income Tax holds the view that the Review Petition was rejected by a conditional order on 22[nd] September, 2011, but the Review papers were not checked till 30[th ]April, 2012 by the Revenue. It is also the view of this deponent that the Advocate then representing the Review Petitioner was changed and the Advocate now filing this Motion Mr. Suresh Kumar noticed these lapses on the part of the Revenue. That is why the Revenue seeks the restoration and by urging that it has very strong and good case on merits, which may suffer because of the inaction on the part of their officers. 11)In that regard, we have found from the reply affidavit to this Notice of Motion that the Appeal was dismissed for non removal of the office objections and also because it was barred by limitation. The Revenue did not do anything after the order dated 23[rd] July, 2009 and after a lapse of more than two years, found that this is a fit case to seek review of the order passed by this Court dismissing the Appeal, as barred by limitation. It filed a Review Petition and which was hopelessly time barred. Thus, a time barred Appeal was sought to be restored to file of this Court seeking Review of the earlier order, but the Application in that behalf was also time barred and by more than two years. It is found that the Revenue was aware that the Review Petition has been dismissed by the conditional order of 22[nd] September, 2011, on 10[th] October, 2011 but it woke up much later and sought to restore this Review Petition. That it could not have restored unless the order of the Registry was set aside. In that also the delay occurred and of 276 days. 12)It is in the above circumstances that we find that there is substance in the grievance of the Assessee that the Notice of Motion should be dismissed. The Assessee has rightly complained that the Revenue has never adhered to the time limit or prescription in Law of Limitation. It defaulted repeatedly. 13)We have also noted and from the contents of the affidavit in support of this Notice of Motion that there is utter negligence and complete callousness on the part of the Revenue and its officers. We cannot put premium on such negligence. We cannot ignore the law of limitation or the prescription of time limit in the law in that behalf, namely the Income Tax Act or brush it aside. This is one more instance wherein the Revenue officials who are responsible in harming or prejudicing the larger interest of public. We cannot turn around and blame either procedural laws or provisions or the Advocate for non compliance there with. Merely handing over papers to the Advocate for filing of Appeals and applications is not enough. The Revenue and their officials must see that Advocates are given proper instructions. They have to be briefed in the matter so that the stand of the Revenue is fully reflected in the proceedings. The responsibility is not therefore over by handing over papers and filing of proceedings. Whether the proceedings have been filed in time, whether they are in order and whether the requisite steps have been taken by all concerned including the Advocates is a matter which must be equally looked into and attended. It is the Revenue's obligation, when its officers are public servants and serving the cause of the public. In each and every case we cannot accept the ground that negligence and lapse of the Advocate should not visit the Revenue with drastic consequences. The Hon'ble Supreme Court has already clarified that Government or Revenue is not a special litigant. It cannot seek condonation of delay on any excuse or cause and as of right or as a matter of course. That there is indifference, lack of interest or some deliberate intentional act of its officers by itself and without anything more is therefore no ground to condone the delay. There is no magic formula and which can be applied to every case filed by the Government. condone the delay. There is no magic formula and which can be applied to every case filed by the Government. 14) As a result of the above discussion, we do not find any merit in this Notice of Motion. It is dismissed. No order as to costs. (A.A.SAYED, J.) (S.C.DHARMADHIKARI, J.)