Itxa 6710.10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION 2361/2010 IN ITXA 6710/2010 Commissioner of Income tax-3 Mumbai Appellant VS. ICICI Bank Ltd. Respondents Mr.Vimal Gupta for Appellant Ms.A.Vissanji a/w Mr.S.J.Mehta for Respondents CORAM- J.P.DEVADHAR ,AND MRS.MRIDULA BHATKAR,JJ. DATE -21ST FEBRUARY,2011 P.C. 1 Income Tax Appeal (L) No.446/2009 ( later on numbered as 6710/2010) was dismissed on 9/7/2009 as the same was beyond time by 91 days 2 Challenging the dismissal order, the appellant moved the Apex Court and by order dated 5/7/2010 the Apex Court set aside the order dated 9/7/2009 and gave liberty to the appellant to move this Court by way of Notice of Motion within 8 weeks from the date of the order i.e. 5/7/2010. In the order dated 5/7/2010 it is further stated that the matter will not be considered Itxa 6710.10 2 by the High Court if the appellant fails to take out notice of motion within 8 weeks from 5/7/2010. 3 Admittedly the present Notice of Motion was taken out on 26/8/2010 and in fact the affidavit in support of the Notice of Motion was affirmed on 26/8/2010. . However, it was lodged on 30/8/2010 . It is contended by the counsel for the assessee that the Notice of Motion is delayed by one day . In our opinion since the Notice of Motion was taken out on 26/8/2010 and even the affidavit in support was affirmed on 26/8/2010 , the fact that there is delay in lodging the Notice of Motion, it cannot be said that the Notice of Motion is taken out belatedly. Hence the Notice of Motion is made absolute in terms of prayer clause ‘a’. No costs. (Mrs.Mridula Bhatkar,J.) (J.P.Devadhar,J.)