1 nma152-11 agk IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.152 OF 2011 IN INCOME TAX APPEAL NO.4260 OF 2009 The Commissioner of Income Tax – 7, Mumbai ..Appellant. Versus M/s.Ogilvy & Mather Private Limited ..Respondent. Mr.Suresh Kumar for the appellant. Ms.A. Vissanji with Mr.S.J. Mehta for the respondent. CORAM : J.P. Devadhar & K.K. Tated, JJ. DATE : 13th September 2011 P.C. : 1. This Notice of Motion is taken out seeking condonation of 22 days delay in filing the appeal and also for setting aside the order dated 22nd July 2009. 2. This appeal was filed by the Revenue against the order dated 17th December 2008 passed by the Income Tax Appellate Tribunal in ITA No. 3343/Mum/2004 relating to assessment year 2000-01. When the appeal was placed for admission on 22nd July 2009, this Court noticed that the appeal was beyond time by 22 days and in the light of the judgment of the Apex 2 nma152-11 Court in the case of Choudharana Steels (P) Limited V/s. Commissioner of Central Excise reported in (2009) 238 ELT 705 (S.C.) wherein it is held that the High Court has no power to condone the delay in filing the appeal, this Court dismissed the appeal filed by the Revenue. 3. Thereafter, Notice of Motion No.2769 of 2009 was taken out by the Revenue seeking condonation of 22 days delay in filing the appeal and for disposal of the appeal on merits. The said notice of motion was dismissed by this Court by an order dated 4th January 2010 on the ground that since the appeal has already been dismissed by order dated 22nd July 2009, the Notice of Motion seeking condonation of delay cannot be entertained. Challenging the aforesaid order dated 4th January 2010, the Revenue filed Special Leave Petition before the Apex Court and by an order dated 3rd December 2010, the Apex Court set aside the order passed by this Court on 4th January 2010 and directed the appellant – Revenue to take out a fresh notice of motion within eight weeks from 3rd December 2010 seeking condonation of delay. 4. Accordingly, the appellant has taken out present notice of motion seeking condonation of 22 days delay in filing the appeal and also for quashing the order dated 22nd July 2009. It is not in dispute that in view of the retrospective amendment to Section 260A of the Income Tax Act, 1961, this Court has jurisdiction to condone the delay in filing the appeal, provided sufficient cause is shown. 3 nma152-11 5. Counsel for the assessee strongly opposed the notice of motion on the ground that once the appeal has been dismissed by order dated 22nd July 2009, it is not open to the Revenue to take out a notice of motion for quashing the order dated 22nd July 2009. It is contended that the proper course for the Revenue is to file either a Review Petition or to move the Apex Court against the order dated 22nd July 2009. 6. We see no merit in the above contentions. Admittedly, the present Notice of Motion is taken out pursuant to the directions contained in the order passed by the Apex Court on 3rd December 2010. The issue before the Apex Court was whether this Court on 4th January 2010 was justified in dismissing the notice of motion and declining to condone the delay on the ground that the appeal has already been dismissed by order dated 22nd July 2009. The Apex Court while setting aside the order of this Court dated 4th January 2010 specifically directed the appellant to take out a notice of motion seeking condonation of delay in filing the appeal. Obviously, as per the order passed by the Apex Court, delay of 22 days has to be condoned if sufficient cause is shown irrespective of the fact that the appeal has already been dismissed by order dated 22nd July 2009. 7. In the present case, sufficient cause is shown in the affidavit in support of the Notice of Motion and, hence, delay of 22 days in filing the appeal deserves to be condoned. Though the order passed by this Court on 4 nma152-11 22nd July 2009 dismissing the appeal looses its efficacy in the light of order passed by the Apex Court on 3rd December 2010, to put the things straight, while condoning the delay of 22 days, we recall our order dated 22nd July 2009 and allow the Notice of Motion in terms of prayer clause (a) and (b). No costs. (K.K. Tated, J.) (J.P. Devadhar, J.)