High Court Of Bombay
CIT vs. Airlift (India) Pvt. Ltd.
M.S. Sanklecha & Sandeep K. Shinde, J.J.
Notice Of Motion (L) No. 534 & 307 OF 2018
In Income Tax Appeal (L) No. 1622 OF 2016
8th June, 2018
Counsel Appeared:
Tejveer Singh for the Appellant. : Sanjiv M. Shah for the Respondent.
P.C.:
The motion No.534 of 2014 seeks condonation of 374 days delay in taking out this motion to set aside the order dated 9th February, 2017 passed by the Prothonotry and Senior Master rejecting the applicant’s appeal under Rule 986 of the Bombay High Court (O.S.) Rules for failure to remove the objections.
On 9th February, 2017, the Prothonotary and Senior Master had granted time to remove the office objections on or before 9th March, 2017 failing which the appeal was liable to be rejected. Thereafter, the applicant Revenue by communication dated 30th March, 2017 sought further two weeks time to remove the office objections. On 20th April, 2017, the applicant Revenue had again filed another application seeking extension of 3 weeks time to remove the office objection and the same was granted by the Prothonotary and Senior Master and the time to remove office objections expired on 28th April, 2017.
The affidavit in support of the notice of motion states that the objections could not removed within the stipulated time in view of the administrative difficulty including shortage of Staff. It is further submitted that they learnt about the dismissal of this appeal under Rule 986 of the Bombay High Court (O.S.) Rules when this was brought to its notice by the standing counsel on 1st May, 2018.
The application for condonation of delay as made does not apear bona fiade, as it is clear that applicant failed to remove the office objections though the the applicant secured extension of time to remove the office objection on three occasions from the Prothonotary and Senior Master. Therefore, they were very much aware of the fact that the office objections had to be removed with the office of the Prothonotary and Senior Master and yet the affidavit offers no explanation as to what steps were taken by the Revenue after the last extension to remove office objections by three weeks granted on 6th April, 2017 by the Prothonotary and Senior Master. The only reasons made out in the affidavit in support is administrative difficulty including shortage of staff. This cannot be the reason for condonation of delay in the absence of same being particularized.
5. Infact in identical circumstances, this Court in Commissioner of Income Tax (Exemptions) Vs. Maharashtra Industrial Development Corporation, (2017) 398 ITR 29 has observed as under:
“This is for the reason that the genesis of the present notice of motion is the order dated November 19, 2005 passed by the Prothonotary and Senior Master which has granted tie to remove office objections on or before December 17, 2015 failing which the petitioner’s appeal was to stand rejected for nonremoval of office objections. The applicant-Revenue failed to remove office objections resulting in the appeal itself being rejected by the Prothonotary and Senior Master. The present affidavit like the earlier affidavits in support of the earlier notices of motion offers the same reasons,
i.e. administrative difficulties namely shortage of staff which has resulted in non-removal of office objections. This can hardly be a reason for filing an appeal which is defective and then claiming that the same could not be removed because of administrative difficulties without setting out any particulars.
In fact, the Supreme Court in the case of Office of the Chief Post Master General V. Livinmg Media India Ltd. and Anr. (2012) 348 ITR 7 (SC), (2012) 3 SCC 563 has, inter alia, observed as follows (page 19 of 348 ITR) :
It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.
In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.â€
6. Moreover, we note that this Court in Commissioner of Income Tax Vs. Reliance Industries Ltd. (2017) 84 Taxmann.com 313 has observed as under :
“8. We have found that if the number of appeals filed by the Revenue are approximately thousand per year or more, then, we expect the Revenue to appoint and depute responsible officials and to follow up the legal cases and matters in this Court. The officers cannot pass on the buck to some junior level employees or clerical staff. This is routinely happening inasmuch as the Departmental heads have not been attending the cases by taking a periodical review of the proceedings or appeals lodged in this Court. They hand over the papers to Advocates and thereafter are not bothered about the outcome of these appeals. It is for the Revenue or the Department to take the necessary action but they do not feel obliged to do so. They expect this Court to condone serious lapses in their functioning by accepting above cause as sufficient. The cause as set out and the explanation as forwarded today, on affidavit and belatedly, reflects total negligence and callousness of the Revenue officials. Their attitude shows that they are not at all vigilant and interested in pursuing the cases filed by the Department involving a tax effect of crores of rupees. They expect the Court to be lenient and liberal and pardon them every time. It is this approach of the Revenue officials which is not only strongly deprecated in the earlier order but this Court has refused to uphold it after it was noticed that this is the position in almost every matter.â€
The above observations are applicable to the present facts. In the above view, we see no reason to condone the delay of 374 days in taking out this application. Accordingly, the Notice of Motion is dismissed.
In the above view, the Notice of Motion No.307 of 2018 seeking condonation of delay in filing the appeal is also dismissed as infructuous.
[Citation : 405 ITR 487]
