IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION INCOME INCOME INCOME TAX APPEAL NO.345 OF 2005 TAX APPEAL NO.345 OF 2005 TAX APPEAL NO.345 OF 2005 M/s Deepak Fertilisers & Petrochemicals Corpn Ltd .. Appellant Vs. Commissioner of Income tax City II Mumbai ... Respondent with INCOME TAX APPEAL NO.346 OF2005 M/s Deepak Fertilisers & Petrochemicals Corpn Ltd .. Apellant Vs Commissioner of Income tax City III Munbai .. Respondent Mr.B.V.Zhaveri for Appellant Mr.Vimal Gupta with Mr.P.S.Sahadevan for Respondent CORAM CORAM CORAM : Dr.S.Radhakrishnan and : Dr.S.Radhakrishnan and : Dr.S.Radhakrishnan and A.V.Nirgude, A.V.Nirgude, A.V.Nirgude, JJ JJ JJ DATE DATE DATE : 23rd June, 2008. : 23rd June, 2008. : 23rd June, 2008. P.C. P.C. P.C. 1. Heard learned counsel for the appellant and learned counsel for the respondent. 2. Mr.Gupta learned counsel appearing for the respondents states that Mr.Sahadevan will file vakalatnama within a period of two weeks from today. Undertaking accepted. 3. By this appeal, learned counsel for the appellant seek to raise the following questions of law: (a) Whether on the facts and in the circumstances of the case the Tribunal was right in law in dismissing the appeal of 2 the appellant holding that the appellant was negligent in filing the appellate even though the tribunal held that no malafides could be ascribed to the appellant nor could it be said that the delay was deliberate ? (b) Whether on the facts and in the circumstances of the case the Tribunal was right in law in not condoning the delay in preferring the appeal against payment of tax at source in respect of payments made to the foreign collaborator even though the appellant was prevented by sufficient cause in not filing the appeal within the time prescribed under the Act ? (c) Whether on the facts and in the circumstances of the case the Tribunal was right in law in dismissing the appeal of the appellant on the ground of delay even though the appellant was made to suffer tax on payments made to the foreign collaborator which was not liable to tax in India in view of the Double Taxation avoidance agreement between India and United Kingdom ? (d) Whether the Third Member of the Appellate Tribunal was justified in not following the decision of the Apex Court which is binding on him wherein the Apex Court condoned the delay of 554 days and awarded exemplary costs of Rs.50,000/- to be paid to the opposite side on the ground that he, the Third Member had limited jurisdiction to approve one of the two views presented in the two differing views of two different members only and not to apply the ratio of the decision of the Apex Court referred to by him ? 4. In substance, Mr.Zhaveri submitted that the questions of law sought to be raised in the above appeal whether the tribunal was justified in rejecting the appeal and refusing to condone the 3 delay. The tribunal agreed with the C.I.T. in refusing to condone the delay of 6 1/2 to 9 years in preferring the appeal pertaining to Assessment years 1991-92, 1992-93, 1993-94, 1994-95. 5. We have perused the tribunal’s judgment dt. 21.10.2004 where the tribunal has clearly remarked as under : " The undisputed fact is that the delay ranges from 6 1/2 years to 9 years. It is also not indispute that the main reason adduced for the delay is that the assessee came to learn about the non-deductibility of TDS only through a tribunal’s decision in the case of DCM Ltd reported in 29 ITD 123 which was decided way back in 1989. Let us examine the issue in the light of these facts. " We have also perused the tribunal’s finding in para 8 : "Certainly it is not a case where malafides can be ascribed to the asseesee nor can it be said that thedelay was deliberate,. But, it is a case of inaction and sheer negligence. The Supreme Court has asked the lower courts to adopt a rational and pragmatic approach where there is some cause for the delay but not in cases where there is no cause at all. A negligent assessee is not entitled to such a benevolence. " 6. From the above, it is clear that the appellant had not disputed that the appellant/assessee files appeal only after having coming to know about the non-deductibility of TDS only through a tribunal’s 4 decision in the case of DCM Ltd reported in 29 ITD 123. The tribunal’s categorical finding that in the instant case, it is a clear case of inaction and sheer negligence, It is only a matter of finding of fact. Hence, appeal is totally devoid of merits. The same stands dismissed. {A.V.Nirgude, {A.V.Nirgude, {A.V.Nirgude, } } } (Dr.S.Radhakrishnan, (Dr.S.Radhakrishnan, (Dr.S.Radhakrishnan, J} J} J}