1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 2056 OF 2008 IN INCOME TAX APPEAL (LODGING) NO. 2538 OF 2007 The Director of Income Tax (International Taxation), Mumbai .......Appellant versus M/s. Societe Generale )........ Respondant. Mr. Parag Vyas for the Appellant Mr. Nishant Thakkar i/b Mulla & Mulla for the respondent. CORAM: SWATANTER KUMAR, C.J., & A.P. DESHPANDE, J. DATED: 23RD SEPTEMBER, 2008. P.C.: 1. This is an application for condonation of delay of 220 days in filing the present Appeal. The affidavit in support of the Notice of Motion has been filed wherein it is averred that for the reasons stated in paragraph 2 of the said affidavit, sufficient cause has been shown for condonation of delay in filing the present Appeal. The learned counsel appearing for the applicant/appellant relies upon the judgment of the Division Bench of this Court in the case of Ornate Traders Pvt. Ltd. Vs. I.T.O. Mumbai, Notice of Motion No.2281 of 2008, and argued 2 that the delay be condoned as sufficient reasons have been disclosed and there is no reason why the delay be not condoned. On the other hand the learned counsel appearing for the non- applicant argued that averments made in the affidavit filed by the appellant/applicant are vague on its face value as far as the delay from 16-4-2007 to 29-10-2007 is concerned. Sheer negligence and callousness are an exception to the principle of condonation of delay and no person can be deprived of his right which has been accrued while allowing the prayer for condonation of delay. 2. No doubt this court has taken somewhat different approach in case of Ornate Traders Pvt.Ltd. Vs. I. T. O. Mumbai, Notice of Motion No.2281 of 2008 along with other connected matters decided on 29th August 2008, and has condoned the delay normally which were under one year. But even in that judgment the Court has stated as under: “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 3 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.” 3. It is a settled rule of law that the limitation takes up the right to prefer an appeal, unless and until the delay in filing the appeal is condoned by the court for appropriate reasons. However, literally the principle of condonation of delay is applied to, there has to be some explanation if not for every day atleast cumulatively for the period condonation of which is prayed for. Here the total period is stated to be 220 days. The order was passed by the Income Tax Tribunal on 19-10-2006 copy of which was received by the department on 23-11-2006. Obviously the appeal ought to have been filed within 120 days from 23-11- 2006. However, the appeal was filed on 29-12-2007. In para 2 of the affidavit some kind of explanation, but hardly any plausible explanation has been given for the period commencing from 23-11-2006 to 14-3-2007. On 14-3-2007 the advocate had received the paper for preparing the appeal and the memo of appeal was received from the department admittedly on 16-4- 2007. In the entire affidavit, there is not even a statement made as to what steps were taken from 16-4-2007 to 29-12-2007. Thus out of the entire delay of 220 days normally 180 days are grace period in relation to which, not even a whisper is made in the affidavit in support of the Notice of Motion. Relevant para of the 4 affidavit for condonation of delay is as under: “(iv) The file was sent to the Central Government Advocate for drafting the draft memo on 14-3-2007. Thereafter, the matter has been followed up by the concerned officer. However, the office of the appellant received the draft memo of appeal on 16-4-2007 and the appeal was filed on 29-12-2007.” Except sheer carelessness, callousness and irresponsibility , no other conclusion can be drawn for the inordinate unexplained delay. The learned counsel appearing for the applicant attempted to argue that there were lot of time barring cases. Firstly there is no such averment made, and secondly time barring cases are prior to 31-3-2007 and not in the month of August to October. This reason exgratia is untenable. The right has accrued to the non-applicant, which cannot be taken away in a routine manner and thus sufficient cause has not been shown by the appellant. While dismissing this application we also direct the competent authority of the appellant to conduct proper inquiry into this matter and fix responsibility on the defaulted officer for causing unexplained delay of six month in filing the present appeal. We are hopeful that this inquiry shall not only be concluded expeditiously but appropriate action shall also be taken against the officer concerned in accordance with the law. 5 For these reasons we dismiss the Notice of Motion for condonation of delay and consequently the appeal does not deserve consideration and is dismissed. CHIEF JUSTICE A.P. DESHPANDE, J.