Wp/820/2011 Of The Commissioner Of Income Tax v. M/S. Jain Trading Co. And Anr

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (LOD) NO.324 OF 2011 The Commissioner of Income Tax-13 ..Petitioner. V/s. M/s. Jain Trading Co. ..Respondent. Mr K.R. Chaudhari for petitioner. Mr. Paras Savla with Ajay R. Singh for respondent. CORAM : J.P. DEVADHAR AND SMT. R.S. DALVI, JJ. DATED : 14TH MARCH, 2011 P.C. :- 1.This writ petition is filed on 17/02/2011 to challenge the order of the ITAT dated 20/2/2006 whereby the Tribunal has recalled its earlier order dated 19/5/2003 and also order dated 30/10/2006 whereby the Tribunal on recall passed fresh order allowing the appeal filed by the assessee. 2.The dispute in the present case relates to assessment year 1999-2000. 3.In the assessment year in question addition of Rs.25,00,000/- and ad-hoc disallowance of various expenses aggregating to Rs.17,282/- were made. The CIT(A) partially allowed the claim of the assessee. On further appeal, the Tribunal by its order dated 19/5/2003 dismissed the appeal filed by the respondent / assessee. Miscellaneous Application filed by the assessee was also dismissed by the Tribunal by its order dated 28/8/2003. 4.Challenging the order of the Tribunal dismissing Miscellaneous Application, the assessee filed Writ Petition No.3359 of 2004 before this Court. This Court by an order dated 1/2/2005 set aside the order of the ITAT dated 28/8/2003 and directed the Tribunal to pass a fresh order on the Miscellaneous Application filed by the petitioner. 5.Thereafter, the matter was heard by the Tribunal and by its order dated 20/6/2006 allowed the Miscellaneous Application by recalling its earlier order dated 19/5/2003. On recall, when the appeal was taken up for fresh hearing, Mr.T.Diwakar Prasad appeared for the revenue. After hearing the parties, the Tribunal by an order dated 30/10/2006 allowed the appeal filed by the assessee. Challenging the order passed by the Tribunal dated 30/10/2006, the Revenue filed an appeal before this Court being Income Tax Appeal No.795 of 2008. When the aforesaid appeal came up for admission, counsel for the revenue sought to withdraw the appeal with liberty to adopt appropriate proceedings. Thereafter, the present petition is filed on 17/2/2011 challenging the order of the ITAT dated 20/2/2006 as also the order dated 30/10/2006. 6.Mr. Chaudhari, learned counsel for the revenue submitted that the Tribunal could not have in the guise of rectification recalled its order dated 19/5/2003 as it amounts to reviewing its own order. In support of his contention, he relied upon the judgment of the Apex Court in the case of Deepak Agro Foods V/s. State of Rajasthan reported in 2008 (228) ELT 510 (S.C.), the decision of this Court in the case of CIT V/s. CIT V/s. Ramesh Electric and Trading Co. reported in (1993) 203 ITR 497 (Bom), the decision of the Calcutta High Court in the case of Shaw Wallace and Co. Ltd. V/s. Income Tax Appellate Tribunal and others reported in (1999) 240 I.T.R. 579 (Cal) and the decision of the Apex Court in the case of Kiran Singh & Ors. V/s. Chaman Paswan & Ors. reported in A.I.R. 1954 S.C. 340. 7.We see no merit in the aforesaid contentions raised on behalf of the revenue, because, firstly, the petition suffers from gross delay and laches in as much as the present petition is filed in the year 2011 to challenge the order of ITAT dated 20/2/2006 and 30/10/2006. In para 9 of the petition, the delay is sought to be explained on the ground that the Commissioner of Income Tax had not received the order dated 7.We see no merit in the aforesaid contentions raised on behalf of the revenue, because, firstly, the petition suffers from gross delay and laches in as much as the present petition is filed in the year 2011 to challenge the order of ITAT dated 20/2/2006 and 30/10/2006. In para 9 of the petition, the delay is sought to be explained on the ground that the Commissioner of Income Tax had not received the order dated 20/2/2006. This statement made in the petition is patently false because, after the order dated 20/2/2006, when the appeal was taken up for hearing, the representative of the Commissioner had appeared for the revenue. Secondly, the very fact that the representative of the Commissioner appeared before the Tribunal clearly shows that the order date 20/2/2006 was served upon the Commissioner. Thirdly, challenging the final order dated 30/10/2006 the revenue had filed an appeal and the same was withdrawn on 7/10/2008. The liberty granted in the order dated 7/10/2008 to adopt appropriate proceedings does not entitle the revenue to file Writ Petition against order dated 20/2/2006 and 30/10/2006. In these circumstances, in our opinion, no case is made out for interference. The Writ Petition is dismissed with no order as to costs. (SMT. R.S. DALVI, J.) (J.P. DEVADHAR, J.)