The Principal Commissioner Of Income Tax, (Central) , Ahmedabad v. M/S Ganesh Plantation Ltd

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/CIVIL APPLICATION NO. 859 of 2022 In F/TAX APPEAL NO. 13527 of 2022 ==========================================================THE PRINCIPAL COMMISSIONER OF INCOME TAX, (CENTRAL) ,AHMEDABAD VersusM/S GANESH PLANTATION LTD. ========================================================== Appearance:MR. M.R.BHATT, SR. ADV. FOR M R BHATT & CO.(5953) for the Applicant(s) No. 1 MS NUPUR D SHAH(10233) for the Respondent(s) No. 1 ========================================================== CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIAandHONOURABLE MR. JUSTICE BHARGAV D. KARIA Date : 30/08/2022 ORAL ORDER (PER : HONOURABLE MR. JUSTICE N.V.ANJARIA) Heard learned senior advocate Mr. M. R. Bhatt for M. R. Bhatt &Co. for the applicant-the Principal Commissioner of Income Tax(Central), Ahmedabad and learned advocate Ms. Nupur Shah for therespondent. 2.The present application is filed by the applicant Revenue prayingto condone the delay of 1018 days in preferring the Tax Appeal. The TaxAppeal proposed to be preferred is against judgment and order dated6.12.2016 of the Income Tax Appellate Tribunal, ‘C’ Bench, Ahmedabadin ITA No. 1520/AHD/2013 for Assessment Year 2008-2009. 3.It was stated that order of the Tribunal was received on 31.3.2017. Therefore, the appeal was required to be filed on or before 29.7.2017 tobe within the limitation. It was further stated that against the said orderof the Tribunal, the applicant preferred Misc. Application No. 115 of2017 for review on 19.4.2017 which came to be disposed by the Tribunalby order dated 6.7.2021. It may be stated at this stage that the said orderwas challenged by the Revenue by filling Special Civil Application No.13695 of 2022, which was disposed of on 26.7.2022 on the ground thatthe department had preferred substantive appeal before the court. It is thesaid appeal in which the delay is sought to be condoned by filling thisapplication. 4.For completion of facts, the relevant portion of aforesaid orderdated 26.7.2022 passed in Special Civil Application No. 13695 of 2022may be noticed, “3. The facts in brief stated in the petition are inter alia that therespondent herein filed its return in respect of the assessment year 2008-09 declaring its total income. He claimed Rs.4 crores under the head lossin contract account which claimed was disallowed by the AssessingOfficer in its assessment order dated 22.12.2010. The ground weighedwith the Assessing Officer was that the respondent failed to provegenuineness of the transaction with one Jay Corporation in respect ofwhich the loss had occurred. The Commissioner of Income Tax(Appeals) confirmed the order of the Assessing Officer. When therespondent approached the Tribunal to challenge the appellateauthority’s order, the tribunal set aside the said orders and allowed theclaim of the aforesaid amount under the head of loss in contract account. 3.1 It appears that the said judgment and order of the Income TaxAppellate Tribunal dated 6.12.2016 was sought to be reviewed by filing Miscellaneous Application No.115 of 2017 which was dismissed by theTribunal on 6.7.2021, which is the order impugned herein. 4. While learned senior advocate raised various contentions to urge thecourt that the review application ought to have been allowed by theTribunal, he fairly admitted the factum that the department has alreadypreferred appeal under Section 260A of the Income Tax Act against theaforementioned judgment and order of the Tribunal dated 6.12.2016. 5. The dismissal of the Special Civil Application by this court is only onthe ground that the petitioner department has preferred substantiveappeal before this court. It goes without saying that all the contentionsof the petitioner will be open to be raised in accordance with law in theappeal proceedings. Accordingly, the present petition is disposed of. “ 4. While learned senior advocate raised various contentions to urge thecourt that the review application ought to have been allowed by theTribunal, he fairly admitted the factum that the department has alreadypreferred appeal under Section 260A of the Income Tax Act against theaforementioned judgment and order of the Tribunal dated 6.12.2016. 5. The dismissal of the Special Civil Application by this court is only onthe ground that the petitioner department has preferred substantiveappeal before this court. It goes without saying that all the contentionsof the petitioner will be open to be raised in accordance with law in theappeal proceedings. Accordingly, the present petition is disposed of. “ 5.In the above background of the developments, it was averred inthis application that the Principal Chief Commissioner of Income Tax,Gujarat, by letter dated 3.2.2022 granted approval for filling the TaxAppeal against the said decision dated 6.12.2016 of the appellate Tribunaland upon receiving such approval, the papers were sent to the office ofthe senior standing counsel of the department. 5.1It was thereafter averred that the time period coincided with theunprecedented situation of Covid-19 pandemic where the affairs in thesociety virtually at stand-still. It was stated that the Supreme Court byorder dated 10.1.2022 excluded the period from 15.3.2020 to 28.2.2022 inreckoning the limitation which may have been prescribed under anygeneral or special law. 5.2It was on the aforesaid counts that the delay was sought to beexplained. 6.There is no gainsaying that the applicant Revenue was pursuingbona fide a remedy. The delay occurred for that reasons and due to thependamic period which were beyond the control of the applicant.Exclusion of the time as directed by the supreme court is also required tobe taken into consideration. 7.For the above reasons, it could be said that sufficient cause is madeout. Therefore, delay is condoned. Application is allowed. Rule is madeabsolute. (N.V.ANJARIA, J) C.M. JOSHI (BHARGAV D. KARIA, J)