1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 2055 OF 2008 IN INCOME TAX APPEAL (LODGING) NO. 2492 OF 2007 The Director of Income Tax ) (International Taxation), ) 1st Floor, Scindia House, N. M Marg ) Mumbai 400 038. ).. Appellants Versus M/s. Roxon OY ) C/o S R Batliboi & Co. ) 18th Floor, Express Towers, Nariman Point ) Mumbai 400 021 ).. Respondent ALONG WITH NOTICE OF MOTION NOS.716/2006, 1894/2008, 1967/2008, 2025/2008, 2051/2008, 2052/2008, 2053/2008, 2063/2008, 2067/2008, 2075/2008, 2098/2008, 2150/2008, 2174/2008, 2175/2008, 2176/2008, 2177/2008, 2178/2008, 2180/2008, 2181/2008, 2183/2008, 2184/2008, 2187/2008, 2188/2008, 2189/2008, 2190/2008, 2213/2008, 2215/2008, 2244/2008, 2245/2008, 2397/2008, 2398/2008, 2401/2008 AND 2423/2008 IN 2 INCOME TAX APPEAL (LODGING) NOS. 33/2006, 1105/2008, 1687/2008, 1367/2008, 2019/2007, 2216/2007, 2308/2007, 1441/2008, 1442/2008, 367/2008, 1546/2008, 1789/2008, 1680/2008, 1679/2008, 1678/2008, 1677/2008, 1676/2008, 1681/2008, 1682/2008, 1683/2008, 1684/2008, 1797/2008, 1796/2008, 1795/2008, 1794/2008, 1597/2007, 2605/2007, 1254/2008, 1259/2008, 968/2008, 2008/2008, 2009/2008 AND 975/2008 Mr Parag Vyas for the Appellant in N/M Nos.716/06, 1967/08, 2051/08, 2052/08, 2053/08 and 2055/08. Mr Suresh Kumar for the Appellant in N/M Nos.1894/08, 2075/08, 2098/08, 2150/08, 2174/08, 2175/08, 2176/08, 2177/08, 2178/08, 2180/08, 2181/08, 2183/08, 2188/08, 2189/08, 2190/08, 2245/08, 2398/08, 2401/08 and for Respondent in N/M No.2025/08. Mr A S Shivsharan for the Appellant in N/M No.2063/08 and 2067/08. Mr A R Singh for the Appellant in N/M No.2025/08. Mr S G Dalal a/w Mr Jitendra Singh for the Respondent in N/M No.716/06. Mr S J Mehta for the Respondent in N/M No.1894/08 and 2150/08. Mr A K Jasani a/w Mr P C Tripathi for the Respondent in N/M Nos.2052/08, 2053/08, 2063/08, 2067/08, 2177/08, 2178/08, 2183/08, 2398/08 and 2401/08. Mr J H Motwani i/b PDS Legal for the Respondent in N/M Nos.2055/08 and 2075/08. Mr Subhash Shetty for the Respondent in N/M No.2098/08 and 3 2215/08. Mr V B Patel a/w Mr S G Dalal for the Respondent in N/M No.2244/08 and 2245/08. CORAM : SWATANTER KUMAR, C.J. & A.P. DESHPANDE, J. JUDGMENT RESERVED ON : 2ND SEPTEMBER 2008 JUDGMENT PRONOUNCED ON : 25TH SEPTEMBER 2008 JUDGMENT (Per Swatanter Kumar, C.J.) By this Judgment, we will dispose of 33 Notices of Motion taken out by the Director of Income Tax – Appellant, and one Notice of Motion being Notice of Motion No.2025 of 2008 taken out by the Assessee. All these Notices of Motion are for condonation of delay. 2. In the Appeals filed by the Director of Income Tax against the orders of the Tribunal, the delay ranges from 6 days to 345 days i.e. less than a year, while the Appeal filed by the Assessee is 4 delayed by 36 days. 3. As would be evident from the affidavit filed in support of the Motion, the grounds for delay are identical and only the period mentioned under a particular head differ. It may be useful at this stage to reproduce the extract from one such application as under :- “2. The relevant dates after the receipt of the impugned order and the chronological dates leading to the filing of the present appeal may be stated as follows:- (i) ITAT order dated 18.08.2006 received in the office of the Director of Income Tax, (International Taxation), M/bai on 11.09.2006. (ii) Scrutiny report was first forwarded to Addl. DIT, (International Taxation) Range 2, Mumbai on 20.09.2006 and Addl. DIT, (International Taxation) Mumbai has forwarded to DIT (International Taxation) on 09.10.2006. (iii) DGIT (International Taxation) granted the approval for filing the appeal which was received on 08.01.2007. (iv) The file was sent to the Central Government Advocate for drafting the draft memo on 23.04.2007. Thereafter, the matter has been 5 followed up by the concerned officer. However, the office of the appellant received the draft memo of appeal on 04.10.2007 and the appeal was filed on 23.10.2007. I say that the due date for filing the appeal was 09.01.2007. The draft memo of appeal was ready but could not be filed in time due to shortage of stamp paper in the office. Hence, this Notice of Motion.” 4. Above is the standard paragraph stated in every Notice of Motion for condonation of delay specifying the time taken at each stage. No doubt the Government Department which is dealing with litigation of this scale is hardly expected to explain each day' s or every year' s delay that has occurred in filing the Appeal. It is a statutory right available to the Department in terms of Section 260A of the Income Tax Act which itself spells out that with the help of Section 5 of the Limitation Act the delay in filing the Appeal can be condoned provided good and proper cause is shown for such delay. It would appear from the afore-narrated facts that the orders are received in the office, then a scrutiny report is preapred, then it is sent to the concerned higher authority for approval. After approval, the file is 6 sent to the Central Government Advocate for drafting the Appeal and upon its receipt, steps are taken to finally file the Appeal after obtaining the Court fee. Some delay may occur in one of these steps. Wherever the delay is unexplained and wherever there is a prolonged delay that too unexplained, the Court would not be inclined to condone the delay. However, if the conduct is ex facie reasonable and does not get vitiated by complete inaction or negligence, the power of the Court to condone the delay may tilt in favour of the Department. In these cases, the Government revenue is involved. That by itself may not be a sufficient ground for condonation of delay, but certainly that is a consideration which cannot be ignored by the Court. In a very recent judgment, a Division Bench of this Court in the case of Ornate Traders Private Limited vs The Income Tax Officer, Ward 3(2)(3), Mumbai and others, Notice of Motion No.2281 of 2008 in Income Tax Appeal (Lodging) No.1814 of 2008 and other connected matters, while condoning the delay caused in filing Appeals, where it was under one year, held as under :- 7 “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 High Court, they have exhibited three different levels under the Act, i.e. order of Assessing Officer, order of the 8 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. 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.” 9 5. We are more inclined to condone the delay in these cases as well for an additional reason that certain directions for channelising the work of the Department in preparation and filing of the Appeals by the Income Tax Department contained in the case of Ornate Traders Private Limited (supra) are stated to be under active consideration and implementation of the Competent Authority. A Circular is expected to be issued by the Competent Authority to introduce the principle of public accountability, trust and fixation of responsibility in all such cases. Unlike the other bunch of Appeals where the delay runs into number of years and the same is unexplained and unsupported by any documentary or other record and where the Court has declined to condone the delay, the present cases have at least offer some cumulative reasonable explanation for a delay which is less than a year in all cases. In fact, there is 6 days delay in filing Notice of Motion Nos. 2187/2008, 2188/2008, 2189/2008 and 2190/2008, while in other Appeals, the delay is more than upto 100 days, 191 days, 245 days, 248 days, 287 days and 345 days delay. These delays to some extent have been explained in the affidavits in support of the Motion 10 and largely the delay has taken place at levels of scrutiny, drafting of Appeals by the Advocate and its institution thereafter. We do express a poise hope that the Department would act with due diligence in future and would carry out the directions issued by the Court in the case of Ornate Traders Private Limited (supra). Even in the larger public interest, we would condone the delay but with a clear warning to the Department that they are expected to channelise their work expeditiously and without any further delay. 6. In the Notice of Motion filed by the Assessee, namely, Notice of Motion No. 2025/2008, there is a delay of 36 days. This delay has been duly explained in the affidavit in support of the Motion. According to the Assessee, the Appeal against revision orders were pending giving rise to multiplicity of proceedings for the assessing year 2001-2002 and the Appellant Company was not able to take correct decision as the entire decision making process was lengthy considering the requirement of consulting Chartered Accountants and seeking their opinion, etc. In our view, these reasons reasonably 11 explain the delay caused in filing the Appeal. 7. The above facts do explain reasonably well the cause of delay. There is really not much opposition by the Department to this Notice of Motion as their own Appeals, as afore-noticed, are barred by time and they can hardly oppose the Motion of the Assessee. Consequently, all the Notices of Motion are allowed. Delay in filing the Appeals are condoned. 8. List the Appeals for admission in regular course. CHIEF JUSTICE A.P. DESHPANDE, J 12 july08/judgment/nma2055-08final.sxw