1 nma2880-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2880 OF 2010 IN INCOME TAX APPEAL NO.795 OF 2008 The Dy. Commissioner of Income-tax, Mumbai City-13 ..Appellant. V/s. M/s. Jain Trading Co. ..Respondent. Mr K.R. Chaudhari for appellant. 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. By this Notice of Motion, the appellant seeks condonation of 633 days delay in taking out Notice of Motion for recalling the order passed in Income Tax Appeal No.795 of 2008 on 7/10/2008. By the said order dated 7/10.2008, the Income Tax Appeal was dismissed as withdrawn by recording the statement of the counsel for the revenue to that effect. 2. Income Tax Appeal No.795 of 2008 was filed to challenge the order the ITAT dated 30/10/2006. Though the appeal was withdrawn 2 nma2880-10 with liberty adopt appropriate proceedings, in the affidavit in support of the Notice of Motion, it is stated that the counsel for the revenue was not authorised to withdrawn the appeal. It is further stated that explanation was called from the concerned standing counsel and since his explanation was not found to be satisfactory, the matter was referred to the senior standing counsel who had opined that the counsel for the revenue was not justified in withdrawing the appeal. In spite of the fact that the senior standing counsel had opined on 31/8/2009 that it is a fit case to contest the appeal, Notice of Motion was filed belatedly on 3/8/2010 i.e. after almost one year. No explanation is given for this delay. In these circumstances, although the explanation given in the affidavit in support of the Notice of Motion is not satisfactory, in view of the fact that counsel for the revenue had erroneously withdrawn the appeal without the consent of the revenue, in our opinion, it would be just and proper to allow the Notice of Motion subject to payment of costs. 3. Accordingly, the Notice of Motion is made absolute in terms of prayer clause (a) & (b) subject to payment of costs of Rs.10,000/- to be paid to the respondents within 2 weeks from today. 4. It will be open to the revenue to collect the costs from the concerned counsel. (SMT. R.S. DALVI, J.) (J.P. DEVADHAR, J.)