The Pr. Commissioner Of Income Tax (Central) Pune v. M.n. Navale (Bigger Huf

401-ia-1906-2020.doc jsn IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INTERIM APPLICATION NO.1906 OF 2020 IN INCOME TAX APPEAL NO.716 OF 2016 The Pr. Commissioner of Income Tax (Central) Pune …Applicant /Petitioner Versus M.N. Navale (Bigger HUF) …Respondent ---------- Mr. Sham Walve with Mr. Pritish Chatterjee for Applicant.Digitally signedby JITENDRAMr. Niraj Seth with Mr. Nitin Dhumal for Respondent.JITENDRASHANKARSHANKARNIJASURENIJASUREDate:2021.09.15----------16:06:10 +0530 CORAM :K.R. SHRIRAM & R.I. CHAGLA, JJ. DATE : 13 SEPTEMBER, 2021. ORDER : 1. On 10th August, 2021, following order came to be passed “1. When the Court pointed out to Mr. Walve thatexcept from saying due to inadvertence the officeobjection remained to be removed, there is noexplanation whatsoever. On 28th August 2014applicant was directed to remove office objections within four weeks. Applicant did notcomply with the order. The matter thereafter waslisted on 16th March 2016 almost one and halfyears later, still the office objections had not beenremoved. Infact nobody even appeared in theCourt on 16 th March 2016. On that date, theappeal came to be dismissed for non removal ofoffice objections. Looks like the Court wascharitable not to note the appeal was beingdismissed for default. Thereafter, this applicationhas been affirmed on 4th February 2020 butlodged on 4th March 2020 and the onlyexplanation we find is “due to inadvertence” 2. Applicant is directed to file a further affidavitexplaining why the office objections were notremoved within four weeks from 28th August2014 and in any case by 16th March 2016 andwhy nobody appeared on 16th March 2016 andstill the application has been affirmed only on4th February 2020 but lodged on 4th March2020 and how after four years applicant realisedthat the appeal had been dismissed. This furtheraffidavit shall be filed and copy served withintwo weeks from today. Respondent may file areply to this application as well as to theadditional affidavit to be filed and serve a copythereof within a week of receiving a copy of theadditional affidavit. 3. Application to be listed for hearing on 7thSeptember 2021. 2. Admittedly, there is a delay of 1419 days in filing this application for restoration. 3.On 28th August, 2014, Applicant was directed to removeall office objections within four weeks. In view of non removal ofoffice objections, Appeal came to be dismissed by an order dated16th March, 2016. 4.In the further Affidavit, we find that Applicant hasdevoted four pages only to give details of certain connectedproceedings which were pending before the Tribunal. Applicant hasdevoted three paragraphs to comply with the directions passed bythis Court in its order dated 10th August, 2021. In paragraph 5, theApplicant has made a general statement that incumbent AO came toknow that the Appeal filed by the department on the issue ofexistence of M.N. Navale Bigger HUF, the Hon’ble High Court haddismissed the Appeal for want of removal of office objections. Mr.Walve states that the said order of ITAT was passed on 15thNovember, 2019. What we find unacceptable is that the incumbentA.O. has not filed any Affidavit. In paragraph 6, Applicant states thatin the year 2014, when the Court passed the order directing toremove office objections one Mr. Vipul Bajpayee was representing thedepartment. On 16th March, 2016, when the Court passed the orderof dismissal Mr. Vipul Bajpayee was a standing counsel for the 401-ia-1906-2020.doc 401-ia-1906-2020.doc department. No Affidavit of Mr. Vipul Bajpayee is filed. We areinformed that Mr. Vipul Bajpayee is junior standing counsel today forthe department. Moreover, the Applicant’s explanation for nonremoval of objection contains only conjectures. He says that inbetween “change in the standing counsel of the department maybethe reason for non appearance ....”; there is a possibility ofcommunication gap can be between standing counsel ..... and thenAO......”, the new officer may not have been fully aware of dismissalof this case....”. 5.In paragraph 7, the Applicant states that “whileconstructing the factual background of this issue in case of M.N.Navale Bigger HUF (AY 2001 – 2002 to 2007 – 2008), it was noticedthat the Appeal recorded the issue of existence of M.N. NavaleHUF…..,” He does not say on which date and who noticed it. 6.As stated in the Affidavit in Reply, the department wasconstantly participating in the proceedings before Income TaxAppellate Tribunal on the existence of M.N. Navale Bigger HUF.Therefore, it is inconceivable that during the period 2012 – 19, theAuthority never once enquired about the status of the Appeal before 401-ia-1906-2020.doc this Court. 7.In view of these reasons, we are not inclined to grant therelief as prayed for by the Applicant to restore the Appeal that wasdismissed pursuant to order dated 16th March, 2016. 8.Application dismissed. [R.I. CHAGLA J.] [K.R. SHRIRAM, J.]