1 nma444-11 sas IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.444 OF 2011 IN INCOME TAX APPEAL NO.6908 OF 2010 The Commissioner of Income Tax-III, Pune ..Appellant. V/s. Shikshan Prasarak Mandal, Pune ..Respondent. Mr. Vimal Gupta for the appellant. Mr. Vaibhav Joglekar with Shailendra S. Kanetkar for the respondent. CORAM : J.P. DEVADHAR AND A.R. JOSHI, JJ. DATED : 18TH NOVEMBER, 2011 P.C. :- 1. By this Notice of Motion, the appellant seeks condonation of 393 days delay in taking out the Notice of Motion and also seeks restoration of the appeal which was dismissed for non compliance of the order passed by this Court on 8th July, 2009. 2. In the present case, the appeal was filed to challenge the order of the ITAT dated 30th April, 2008, whereby the Tribunal had directed the CIT to grant approval to the assessee under Section 80G of 2 nma444-11 the Income Tax Act ('the Act' for short) for the assessment year 2006-07 onwards. 3. By an order passed in the above appeal on 8th July, 2009 this Court directed the appellant to remove the office objections within the time stipulated therein. As per the said order, the appeal was to stand dismissed, if the objections were not removed within the stipulated time. As the objections were not removed within the stipulated time, the appeal was dismissed. Hence the present Notice of Motion is taken out by the revenue seeking condonation of delay and restoration of the appeal. 4. The reasons for the delay according to the revenue was on account various administrative difficulties. It is contended that the concerned officer was under the mistaken impression that the appeal was pending for admission. Accordingly, it is contended that in the interest of justice, the delay be condoned and the appeal be restored to file. 5. The Notice of Motion is vehemently opposed by the counsel for the assessee. It is contended that the Notice of Motion suffers from gross delay and in the absence of sufficient cause shown, the delay cannot be condoned. It is contended on behalf of the assessee that challenging similar order passed by the CIT rejecting the application for 3 nma444-11 renewal of approval under Section 80G of the Act for the subsequent period, the assessee had filed a Writ Petition in this Court bearing Writ Petition No.9397 of 2009 and during the hearing of the said Writ Petition, it was brought to the notice of the Court that the present appeal has already been dismissed for want of prosecution. Since the counsel appearing for the revenue in the present case, was also appearing for the revenue in the said Writ Petition No.9397 of 2009, it is contended that the statement made in the affidavit in support of the Notice of Motion to the effect that the concerned concerned officer was under the mistaken belief that the present appeal was pending for admission, is false. It is further contended that the Writ Petition No.9397 was disposed of on 6/7/2010, whereas the present Notice of Motion is taken out belatedly on 12/10/2010. In view of the gross delay which is unexplained, it is submitted that the delay cannot be condoned. 6. Relying upon the judgments of the Apex Court in the case of Dilbagh Rai Jarry V/s. Union of India & Ors. reported in (1974) 3 Supreme Court Cases, 554 (S.C.), Binod Bihari Singh V/s. Union of India reported in (1993) Supreme Court Cases 572 (SC), P.K. Ramchandran V/s. State of Kerala & Anr. reported in (1997) 7 Supreme Court Cases, 556 (S.C.) and Pundlik Jalam Patil (Dead) by LR’s V/s. Executive Engineer, Jalgaon Medium Project & Anr. reported in (2008) 17 Supreme Court Cases, 448 (SC), counsel for the assessee submitted that where 4 nma444-11 the condonation of delay is sought without showing sufficient cause and the statements made in the affidavit in support are found to be false, the delay ought not to be condoned. 7. No doubt that the reasons for the delay set out in the affidavit in support of the Notice of Motion is unsatisfactory. Apart from stating that the delay occurred on account of administrative difficulties, no other particulars are given. In our opinion, although the explanation given by the revenue is unsatisfactory, in the light of the judgment of the Apex Court in the case of CIT V/s. West Bengal Infrastructure Development Corporation Ltd. reported in [2011] 334 ITR 269 (S.C.), we are inclined to condone the delay subject to payment of costs. Moreover, in the present case, the tax involved is Rs.2.82 crores and it is the case of the revenue that they have good case on merits, as according to them, the assessee being guilty of collecting capital fees and the assessing having denied exemption under Section 11 of the act in respect of the three colleges run by the assessee, approval under Section 80G of the Act could not be ordered to be given by the ITAT. The argument of the assessee that false statement has been made by the revenue in the affidavit in support of the Notice of Motion is without any merit. In our opinion, the statement made in the affidavit in support has to be understood to mean that till the hearing of the Writ Petition No. 9397 of 2009, the concerned officer was under the belief that the present 5 nma444-11 appeal was pending and on coming to know at the hearing of the said Writ Petition to the effect that the present appeal has been dismissed, steps were taken to restore the present appeal and accordingly the present Notice of Motion has been filed. Although several judgments have been cited by the counsel for the assessee, in our opinion, all those judgments rendered in the civil proceedings would have little relevance in the revenue matters. 8. For all the aforesaid reasons, the Notice of Motion is made absolute in terms of prayer clauses A & B subject to payment of cost of Rs.5,000/- to be paid by the appellant to the respondent within a period of 2 weeks from today. 9. If the costs are not paid within the time stipulated herein, the Notice of Motion shall stand dismissed without further reference to the Court. 10. The appellant is directed to remove all the office objections within a period of 2 weeks from today. 11. If the cost is paid within the stipulated time, the appeal be placed for admission after 8 weeks. 12. The Notice of Motion is disposed off accordingly. (A.R. JOSHI, J.) (J.P. DEVADHAR, J.)