1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 3319 OF 2008 IN INTEREST TAX APPEAL (LODGING) NO. 10 OF 2007 The Commissioner of Income Tax-3 ) Room No. 612, Aayakar Bhavan, ) M.K. Road, Mumbai 400 020 ).. APPELLANT VERSUS M/s Reliance Capital Ltd ) Mittal Chambers, Ground Floor ) Nariman Point, Mumbai 400 021 ).. RESPONDENT ALONG WITH NOTICE OF MOTION NO. 3926 OF 2008 IN INCOME TAX APPEAL (LODGING) NO. 2807 OF 2008 The Commissioner of Income Tax City-5 ) having his office at Room No. 571 ) Aayakar Bhavan, Mumbai 400 020 ).. APPELLANT VERSUS M/s Oriental Pharmaceuticals Inds. Ltd. ) 109, Mt. Unique Peddar Road ) Mumbai 400 026 ).. RESPONDENT WITH 2 NOTICE OF MOTION NO. 3928 OF 2008 IN INCOME TAX APPEAL (LODGING) NO. 9 OF 2008 The Commissioner of Income Tax, Mumbai ) City 5, Aayakar Bhavan, M.K. Road ) Mumbai 400 020 ).. APPELLANT VERSUS M/s India Securities Ltd. ) Essar House, 11, Keshavrao Khadye Marg ) Mahalaxmi, Mumbai 400 036 ).. RESPONDENT WITH NOTICE OF MOTION NO. 3931 OF 2008 IN INCOME TAX APPEAL (LODGING) NO. 3216 OF 2008 The Commissioner of Income Tax, City 5 ) Having office at R. No. 571 ) Aayakar Bhavan, Mumbai 400 020 ).. APPELLANT VERSUS M/s Jet Airways (I) Ltd. ) S.M. Centre, Andheri Kurla Road ) Andheri (E), Mumbai 400 059 ).. RESPONDENT WITH NOTICE OF MOTION NO. 3932 OF 2008 IN INCOME TAX APPEAL (LODGING) NO. 3215 OF 2008 The Commissioner of Income Tax, City 5 ) 3 Having office at R. No. 571 ) Aayakar Bhavan, Mumbai 400 020 ).. APPELLANT VERSUS M/s Jet Airways (I) Ltd. ) S.M. Centre, Andheri Kurla Road ) Andheri (E), Mumbai 400 059 ).. RESPONDENT WITH NOTICE OF MOTION NO. 3933 OF 2008 IN INCOME TAX APPEAL (LODGING) NO. 3212 OF 2008 The Commissioner of Income Tax, City 5 ) Having office at R. No. 571 ) Aayakar Bhavan, Mumbai 400 020 ).. APPELLANT VERSUS M/s Jet Airways (I) Ltd. ) S.M. Centre, Andheri Kurla Road ) Andheri (E), Mumbai 400 059 ).. RESPONDENT WITH NOTICE OF MOTION NO. 3936 OF 2008 IN INCOME TAX APPEAL (LODGING) NO. 2913 OF 2008 The Commissioner of Income Tax, City-5 ) having office at R. No. 571 ) Aayakar Bhavan, Mumbai 400 020 ).. APPELLANT 4 VERSUS M/s Jade Investments and Leasing Pvt. Ltd. ) 201, Raheja Centre, Free Press Journal Marg ) Nariman Point, Mumbai 400 021 ).. RESPONDENT WITH NOTICE OF MOTION NO. 3937 OF 2008 IN INCOME TAX APPEAL (LODGING) NO. 3217 OF 2008 The Commissioner of Income Tax, City-5 ) having his office at R. No. 571 ) Aayakar Bhavan, Mumbai 400 020 ).. APPELLANT VERSUS M/s Jet Airways (I) Ltd. ) S M Centre, Andheri Kurla Road ) Andheri (E), Mumbai 400 059 ).. RESPONDENT WITH NOTICE OF MOTION NO. 4051 OF 2008 IN INCOME TAX APPEAL (LODGING) NO. 2880 OF 2008 Director of Income-Tax (International ) Taxation), Scindia House ) Ballard Pier, Mumbai 38 ).. APPELLANT VERSUS Citi Bank N.A. ) “G” Block, C-61, 5th Floor ) Bandra Kurla Complex, Bandra (E) ) Mumbai 400 051 ).. RESPONDENT 5 WITH NOTICE OF MOTION NO. 4054 OF 2008 IN INCOME TAX APPEAL (LODGING) NO. 2879 OF 2008 Director of Income Tax ) (International Taxation) ) Scindia House, Ballard Pier ) Mumbai 38. ).. APPELLANT VERSUS Credit Suisse First Boston ) C/o Price Waterhouse, 8th Floor, Trade World ) “C” Wing, Kamala Mills Compound ) Senapati Bapat Marg, Lower Parel ) Mumbai 400 013 ).. RESPONDENT AND NOTICE OF MOTION NO. 4056 OF 2008 IN INCOME TAX APPEAL (LODGING) NO. 2875 OF 2008 Director of Income-Tax (International ) Taxation), Scindia House ) Ballard Pier, Mumbai 38 ).. APPELLANT VERSUS Citi Bank N.A. ) “G” Block, C-61, 5th Floor ) Bandra Kurla Complex, Bandra (E) ) Mumbai 400 051 ).. RESPONDENT Mr Vimal Gupta i/b Mr P S Sahadevan for the Appellant in N/M No.3319/08. 6 Mr R Ashokan a/w Mr P S Sahadevan for the Appellant in N/M Nos.3926/08, 3931/08, 3932/08, 3933/08, 3936/08 and 3937/08. Mr J S Saluja for the Appellant in N/M No.3928/08. Mr Parag Vyas for the Appellant in N/M Nos.4051/08, 4054/08 and 4056/08. Mr R Murlidharan i/b Rajesh Shah & Co. for the Respondent in N/M No.3319/08. Mr B V Jhaveri for the Respondent in N/M No.3926/08. Mr P C Tripathi a/w Mr A K Jasani for the Respondent in N/M Nos.3928/08, 3931/08, 3932/08, 3933/08, 3936/08, 3937/08 and 4054/08. Mr B Damodar i/b Kanga & Co. for the Respondent in N/M Nos.4051/08 and 4056/08. CORAM: SWATANTER KUMAR, C.J. AND DR. D.Y. CHANDRACHUD, J. . JUDGMENT RESERVED ON : 6TH JANUARY 2009 JUDGMENT PRONOUNCED ON : 15TH JANUARY 2009 JUDGMENT : (PER SWATANTER KUMAR, C.J.) By this order, we will dispose of the above referred 11 Notice of Motions taken out by the Commissioner of Income Tax , Mumbai for condonation of delay in filing Interest Tax Appeal No. 10/2007 and Income Tax Appeals being Income Tax Appeals (Lodging) Nos.2807/2008, 9/2008, 3216/2008, 3215/2008, 7 3212/2008, 2913/2008, 3217/2008, 2880/2008, 2879/2008 and 2875/2008. In all these cases, the delay in filing the Appeals is between 411 days to 883 days. 2. In Notices of Motion Nos.3926/2008, 3928/2008, 3931/2008, 3932/2008, 3933/2008, 3936/2008 and 3937 of 2008, in support of the respective Notices of Motion, identical affidavits have been filed giving the alleged reasons for condonation of delay. Similarly, in Notices of Motion Nos.4051/2008, 4054/2008 and 4056/2008, identical affidavits have been filed, of course they are somewhat different than the ones filed in the 7 cases referred to by us above. In Notice of Motion No.3319/2008, where there is a delay of 815 days, an affidavit has been filed without giving any details whatsoever. The data given in other affidavits has not been provided in this other affidavit. It is an affidavit of few paragraphs which says that the Appeal should have been filed on 4th August 2005 with a delay of 815 days and the papers were given to the Counsel on 1st October 2007, who drafted the Appeal on 15th October 2007 and thereafter some more time was taken to prepare the Appeal which was filed on 29th October 2007. This application for condonation of delay was seriously opposed by the learned 8 Counsel appearing for the Non-Applicant. There is no doubt that not even an attempt has been made by the Department to explain the delay of 815 days. The affidavit besides being vague, practically contains no averments. This affidavit further shows the callous approach adopted by the Department in pursuing the matter. Admittedly, the order of the Tribunal was dated 10th February 2005 and it has not even been stated as to when the said order was received by the Department. In fact, the Appeal appears to have been filed after a lapse of more than two years as it was filed on 29th October 2007 in the registry of this Court. This affidavit does not give any reasons much less shows a sufficient cause for condonation of such huge delay in filing the Appeal. A definite right has accrued in favour of the Non-Applicant which cannot be taken in face of such vague averments and where the affidavit in support of the Motion does not provide any details. 3. Coming back to the affidavit filed in support of Notices of Motion Nos.3926/2008, 3928/2008, 3931/2008, 3932/2008, 3933/2008, 3936/2008 and 3937 of 2008, the affidavits filed are almost identical in terms in all these cases. In Notices of Motion 9 Nos.3931/2008, 3932/2008 and 3933/2008, the order was passed by the Income Tax Appellate Tribunal on 30th May 2006 and is stated to have been received by the Office of the Commissioner of Income Tax on 14th June 2006. The scrutiny report was called for which was sent on 10th October 2006. It has no where been explained as to what steps were taken by the Department for preparing the so-called scrutiny report during the intervening period of four months. This report, however, was received in the Office of the Commissioner of Income Tax on 11th October 2006 and then the file was sent to the Panel Counsel for drafting the Memo of Appeal, which according to the Department, was received on 14th August 2008. Thereafter some time was taken in finalising the Appeal and the Appeal was filed on 29th August 2008 whereas the last date for filing the Appeal was 12th October 2006. The application for condonation of delay was opposed by the Non- Applicants as the delay in each of these cases is 411, 687, 656 and 883 days. In our view, no explanation has been rendered in the affidavits which would constitute sufficient cause for condonation of such large delay in filing the Appeals. 4. In the other three Notice of Motions Nos.4051/2008, 10 4054/2008 and 4056/2008, where again identical affidavit in support of the Notice of Motion have been filed, the delay in filing these three Appeals is 450 days. The affidavit filed by the Deputy Director of Income Tax again are vague, uncertain and provide no proper explanation for the delay caused. The order of the Income Tax Appellate Tribunal was passed on 19th December 2006 and 18th January 2007; the copies are stated to have been received by the Department on 2nd February 2007 and the Appeal was to be filed on or before 2nd June 2007 as per the own case of the Applicant. However, the same were filed on 28th August 2008. The copioes were received on 2nd February 2007 and till 14th July 2007, no action whatsoever was taken by the Department and as nothing has been stated in the affidavit. The affidavits open with the words that the deponent joined the concerned Branch on 14th July 2007 and he found a huge back log left by his predecessor and he was holding the additional charge. It is nowhere stated that what steps were taken even thereafter to file the Appeal expeditiously though it had admittedly become barred by time on 14th July 2007. It is stated that the Officer went to Delhi for attending cases and for meetings with the Law Officers. These affidavits are void of any proper explanation which would constitute 11 a sufficient cause in the eyes of law. It is obligatory upon the Applicant to properly explain the delay, may be not each day's delay, but the cumulative explanation for condoning the delay of this kind has to necessarily be stated in the affidavits. A valuable right accrues to the other side when the remedy is permitted to become barred by time. 5. In a recent judgment of a Division Bench of this Court in the case of Ornate Traders Private Limited vs The Income Tax Officer, Mumbai, (Notice of Motion No.2281 of 2008 in Income Tax Appeal (Lodging) No.1814 of 2008 and other connected matters decided on 29th August 2008), while dealing with Notices of Motion for condonation of delay of the similar kind, where the delay was of more than a year and there was no proper explanation, the Court declined to condone the delay and held as under :- “6. .... It is expected that the Government Departments should function in a properly mechanized manner and not to act so casually that because of its inaction or misdeeds, the public exchequer is made to suffer. Xxxxx xxxxx xxxxx 20. The law of procedure undisputedly takes in its ambit and scope the need to act expeditiously and not to delay the progress of the 12 legal proceedings. The law of limitation stricto senso is not law of procedure simplicitor but has the effect of creating a legal bar in exercise of a right which otherwise would have been available to a party but for lapse of time. As already noticed, the law of limitation is based on public policy and helps effective and proper administration of justice. It is expected of every litigant and particularly the litigants who have large litigation who have their own legal department and channels, to act within the period of limitation. It is only by way of an exception and upon showing sufficient cause that Appeals, if otherwise permissible, could be entertained beyond the prescribed period of limitation. It also be noticed that in the case of State of West Bengal vs. Administrator, Howrah Municipality, AIR 1972 SC 749, the Supreme Court held that expression “sufficient cause” should receive a liberal construction so as to advance the purpose of justice particularly when there is no motive behind delay. This necessarily implies that parties must act bonafidely, expeditiously and with due care. A casual or a negligent litigant who has acted with utter irresponsible attitude, cannot claim the condonation of delay in law when the right has accrued to the other side. xxxxx xxxxx xxxxx 23. In performance of their functions, public officers or public servants have the duty to act judiciously, fairly and expeditiously. An officer can hardly justify that a file would lie on his table for months or days together and he would not act on the said file just because he claims to be pre- occupied. Another argument advanced on behalf of the Department was that there are time bar cases and in that rush the officers are not able to 13 act. Firstly, there is no specific averment in this regard with any dates in the affidavit filed in support of the Notice of Motion. Secondly, the time barring cases are completed by 31st March or immediately thereafter, while all these cases relate to the period subsequent to March of the respective assessment year. Pre-occupation of an officer or officials can be a reasonable excuse, but for a short period and nothing justifies the inaction for a pretty long period running into months. If such an excuse is to be permitted in law, then the Courts would have to completely ignore the law of limitation. Public interest imposes an obligation upon the Department as a whole to act in a channalised manner and to ensure that every appeal which is sought to be preferred by the Department is not rendered barred by time that too by inordinate and unexplained delays. In fact, some of the cases before us, particularly where the delay is more than a year, ex facie reflects negligence and callous attitude of shifting responsibilities. If the file was pending with the lawyer, there is not even an averment that the lawyer who retained the file for few months was contacted or any officer of the Department went to the lawyer to either take back the papers or to get the draft ready for filing in the Court of competent jurisdiction. It is too far fetched an excuse to be put forth before the Court of law that the lawyers retained the files for months together and the Department was so helpless that it could take no steps to file its appeals within a reasonable time. The expression “sufficient cause” will always have relevancy to reasonableness. The actions which can be condoned by the Court should fall within the realm of normal human conduct or normal conduct of a litigant. It is neither expected nor it can be a normal conduct of a public servant or a litigant that they would keep the files unmoved, unprocessed for months together on their tables. Some extent of public accountability and 14 responsibility will have to be the basis for looking into such conduct. The consequences of such inordinate delay can be very fatal besides rendering remedy barred by law also leads to loss of public exchequer. This aspect of the matter introduces larger responsibility and consciousness in the conduct of the affairs of the revenue department. Certain amount of leverage or relaxation for departmental functions would be permissible, but this cannot be extended to the limits protecting negligence and irresponsibility simplicitor. For example, in Notice of Motion No. 2335 of 2008, the copy was received on 6th December 2006. The prescribed period of limitation was permitted to expire. There is nothing in the application to say what steps were taken before 4th April 2007, when the Appeal was alleged to have been sent for drafting. There is no averment as to what steps were taken for getting the draft appeal prepared and filing of the same in Court right from 4th April 2007 till 27th February 2008. Even when the Appeal was ready in February 2008, there is no explanation as to why it was filed on 26th June 2008, after a lapse of more than four months. Similarly, in Notice of Motion No. 2059 of 2008, the copy was received on 23rd June 2004 and no steps whatsoever were taken between 23rd June 2004 till 20th September 2004. Thereafter, various persons claimed to have acted in regard to various aspects of the case, like scrutiny, A.O.'s report, approval and authorisation. The draft Appeal was received in the office of the Appellant on 30th November 2004, but the Appeal has been filed in the High Court on 25th February 2008. No reason whatsoever has been given as to what was being done for the intervening period for more than three months. Apart from the standardised proforma giving chronology of dates and events in the affidavit in support of the Notices of Motion attempting to show sufficient cause for condonation of delay, no event whatsoever during 15 this period has been referred to so as to render the cause sufficient and delay reasonable. These facts clearly show that there was utter negligent and irresponsible attitude on the part of the officers/officials. 24. In all the applications for condonation of delay, similar tables have been given with more or less similar facts but of course the dates are different in different cases. In fact, even dates in some cases are common. In other words, it is a collective excuse shown for condonation of delays, stages in different cases are the same but the period of delay varies from 18, 190 to 1474 days. In the cases where the delay is of 18 or 190 days or even upto a year, some plausible explanation has been rendered which the Court may, keeping in view the concept of public interest and public revenue, show indulgence and condone the delay. Even in such cases, there is unexplained delay, but as stated in different cases, the Department may not be called upon to explain each day's delay because of their office procedures and competency to take decision in the hierarchy of the Department. All this can be excused, but to a limited extent. Normally, file may take few days or a week on a table, but cannot take months and years. In the cases where the delay is more than 400 days or above 1000 days, there has been no justification, much less a sufficient cause shown, for condonation of delay. In these cases, where inordinate delay is unexplained, explanation given either is fanciful or opposed to normal course of human conduct and official conduct coupled with element of negligence and irresponsible attitude. Vague explanation or in some cases no explanation further adds to the gravity of the situation in the Department of Revenue. 25. In the Appeals preferred by the Department, obviously before the Appellant approaches the 16 High Court, they have exhibited three different levels under the Act, i.e. order of Assessing Officer, order of the Commissioner of Appeals and then the order of Tribunal. Recourse to special remedy under Section 260A of the Income Tax Act which specifies the period of limitation, the Appellants are expected to act with responsibility and vigilance. In all these cases, the distinction in the case to be founded on the extent of the delay, unexplained and inordinate delay and the negligence and casual attitude of the officers/officials dealing with the matter. Where all these three elements are collectively present and the delay is beyond the period of 400 days i.e. more than a year, there would be no justification with the Court to divest the non-applicant of a right which has accrued to him in law and in fact because of the unreasonable conduct of the applicant. 26. From the copies of the orders of the Tribunal placed on record, it is obvious that the orders were pronounced in accordance with law much prior to the dates when the copies were received by the Department. In other words, the Department was fully aware of the fate of the case before the Tribunal and its responsibilities arising from such a judgment and order. The plea of time barring cases, over-load work are hardly of any consequence in the present case. We have already noticed that majority of the cases where the delay is large, they all are stated to be in process only after the expiry of 31st March of the respective year. The question of public revenue cannot be used as an excuse. It in fact adds to the responsibility and liability of the Department. Wherever there is higher public revenue, greater is the responsibility to act with utmost expeditiousness. It cannot justify the conduct that you sleep over and ignore your statutory rights for years and then take up the plea of public 17 revenue. The Court can also not completely ignore the interest of the assessee who might have succeeded in the previous proceedings leading to the filing of the Appeal. 28. Having given our considered attention to the various aspects of these cases, in our opinion, interest of justice would be better served if some latitude and relaxation is given to the Applicants (Commissioners of Income Tax). We would condone the delay in all the Appeals where the delay is less than a year and which has been reasonably explained. But in the case where the delay is beyond one year and upto 1474 days, we would reject the applications for condonation of delay as there is no proper explanation and no sufficient cause shown for condonation of delay and there is apparent negligence and callousness on the part of the officer/officials of the Department to the extent that even correct statements have not been made in those cases.” 6. We may notice here that in that judgment, even certain directions were issued to the Department to ensure filing of Appeals within time in future and to fix the responsibility of the defaulting officers as the Appeals cannot be permitted to become time barred as a matter of routine since it involved the question of Government revenue. Thus, all these cases have been filed after the pronouncement of the order in that case, still no care has been taken to comply with the directions of the Court. The affidavits filed render no proper explanation. It is not even referred to in the 18 affidavits whether the Department has cared to fix the responsibility of the erring officers who have permitted the Appeals to become bar by time as a result of sheer negligence and carelessness. If the officers would have acted timely, the Appeals would not have become barred by time. The officer claims to have taken over the post in July 2007, and as already noticed that knowing fully aware that the Appeals have become barred by time, still it took more than one year for the Department to file these Appeals. This inordinate delay in filing the Appeals have remained unexplained. The only apparent cause for such serious delay is callous, irresponsible style of functioning in the Department. The principle of public accountability makes the concerned officers responsible and liable for such omission. We do hope that the Department would look into the matter in its proper perspective. 7. While declining to condone such inordinate delay in filing the Appeals, all the Notice of Motions are dismissed. Consequently, the Appeals do not survive for consideration which are also dismissed. No