Wp/1062/2018 Of Principal Commissioner Of Income Tax (Central) - 4 Mumbai v. Income Tax Settlement Commission (Itsc) And Anr

Rane 1/6 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1062 OF 2018 Pr. CIT (Central)-4, Mumbai…Petitioner V/s. ITSC Additional Bench-1 ….Respondent * * * * Mr. N.C. Mohanty, Advocate for the petitioner. Mr. Percy Pardiwala, Senior Counsel a/w. Ms. Vasanti Patel, Advocate for the respondent. CORAM :- M.S. SANKLECHA, &SANDEEP K. SHINDE, JJ. DATE :3RD AUGUST, 2018. P.C. :-1. This petition under Article 226 of theConstitution of India, challenges the order dated 23rdApril, 2015 passed by the Income-Tax SettlementCommission (the Commission). The impugned orderdated 23rd April, 2015 has been passed under Section 245(D)(4) of the Income-Tax Act, 1961 (the Act). Rane 2/6WP-1062-2018 (SR.22)Friday, 3.8.2018 2. The challenge to the impugned order dated23[rd] April, 2015 which was received by the petitionerson 20[th] May, 2015 was made by way of this petition on16[th] November, 2016. The petitioners seek an exerciseof our extra-ordinary jurisdiction under Article 226 ofthe Constitution of India, to set aside the order passedby the Commission over a year and a half beforemoving this Court. 3. A challenge to an order under Article 226 ofthe Constitution of India to be entertained, is not amatter of right in the party but a discretion to beexercised by the Court and one of the grounds to notexercise discretion is where a party has grossly delayedin moving the Court for this extra-ordinary remedy.However, where there are adequate reasons for thedelay and the Court is satisfied that there is nonegligence or omission on the part of the party, theCourt may entertain a writ petition . However, the sameis inter-alia to be examined in the context of the Rane legislation under which the order is passed. Therefore,keeping the above broad parameters in mind, we shallexamine the reason for the delay. 4. Mr. Mohanty, Learned Counsel appearing insupport of the petition, submits that, this delay on thepart of the petitioners was essentially in view of the factthat the persons responsible to challenge the order weretransferred and/or were engaged in time barringassessments. Further, it is submitted that, on 13[th] April,2016 the Departmental Representative before theCommission, informed the petitioner that the impugnedorder could be subject matter of challenge in a writpetition in this Court. From the chronology set out inthe petition, it appears thereafter, that the petitionermoved to engage an Advocate and finally filed a petitiononly on 16[th] November, 2016. 5. The explanation for the laches/delay by thepetitioners in moving the Court does not inspire any Rane 4/6WP-1062-2018 (SR.22)Friday, 3.8.2018 confidence. The fact that the officers were busy withtime barring assessments does not absolve them fromtaking proper action to challenge the orders of theCommission, which according to them, is withoutjurisdiction and/or contrary to the Statute. This nottaking action is evidence of negligence or caring lessabout this issue. The extra-ordinary writ jurisdiction isto be exercised only in case of parties whose conductwould evidence that the party was serious about thechallenge and acted expeditiously to set right aninjustice perceived by him. The extra-ordinaryjurisdiction cannot be exercised in case of a party whotakes his own time to approach the Court and sets outreasons only to explain the delay without anyparticulars to support the same. Infact, the letter dated13[th] April, 2016 by the Departmental Representativebefore the Commission, to the AssessingOfficer/Petitioner is not annexed. There is noexplanation as what triggered this letter from himalmost an year after the impugned order was passed. Rane WP-1062-2018 (SR.22)Friday, 3.8.2018 Rane WP-1062-2018 (SR.22)Friday, 3.8.2018 All the above facts have to be seen in the context that,the Assessing Officer gave effect to the impugned orderdated 23[rd] April, 2015 of the Commission by an orderdated 29th May, 2015. 6. The reliance by Mr. Mohanty, in support ofthe petition upon the decisions of the Supreme Court in(i) G. Ramegowda, Major and Others V/s. Special LandAcquisition Offi cer, Bangalore, (1988) 2 Supreme CourtCases 142, (ii) State of U.P. and Others Versus. HarishChandra and Others, (1996) 9 Supreme Court Cases309 and (iii) State of Haryana Versus. Chandra Maniand Others, (1996) 3 Supreme Court Cases 132 will notapply to the present facts. In all the above cases, theParliament/Legislature had provided for Appeals under theStatute and/or period of limitation either under the Act or interms of the Limitation Act. In this case, the Parliamenthas not provided for any Appeal from orders of theCommission. This with the hope that the order of theCommission would finally bring an end to a disputebetween a party who has approached the Commission Rane 6/6WP-1062-2018 (SR.22)Friday, 3.8.2018 and the Revenue Department. It is in thesecircumstances that a party who seeks to approach theCourt to challenge the orders of the Commission, mustact expeditiously and ensure that the other party is notput to any prejudice because of the delay. Entertainingpetition after almost over a period of one and half yearwould upset the settled positions and re-open matterswithout any explanation for the delay. 7. In the above view, we see no reason toexercise our extra-ordinary jurisdiction under Article226 of the Constitution of India. 8. Petition dismissed. No order as to costs. (SANDEEP K. SHINDE, J) (M.S. SANKLECHA, J) NeetaDigitally signedby NeetaShaileshShailesh SawantDate:Sawant2018.08.0611:57:37 +0530