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OJCA/265/2008 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION No. 265 of 2008
In
TAX
APPEAL (STAMP) No. 2831 of 2008
=====================================================
MAHESHBHAI
G PATEL - Applicant(s)
Versus
DEPUTY
COMMISSIONER OF INCOME TAX - Respondent(s)
=====================================================
Appearance
:
MR BD KARIA for MR RK PATEL for
Applicant
MRS MAUNA M BHATT for
Respondent
=====================================================
CORAM
:
HONOURABLE
MR.JUSTICE D.A.MEHTA
and
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 20/10/2008
ORAL
ORDER
(Per
: HON’BLE SMT. JUSTICE ABHILASHA KUMARI)
This
application has been filed by the applicant-assessee under Section 5
of the Limitation Act with a prayer to condone the delay of 407 days
caused in preferring Tax Appeal against the order dated 22.12.2006
passed by the Income Tax Appellate Tribunal in IT (SS) A
No.69/AHD/2001.
Rule
was issued in this application, on 17.9.2008. When the application
was heard on 7.10.2008, the learned advocate for the applicant had
sought time in order to tender better particulars by way of a
detailed affidavit. Further affidavit dated 15.10.2008 has
thereafter been filed by the applicant-assessee, explaining the
delay caused in filing the Appeal.
We
have heard Mr.B.D.Karia, learned advocate for Mr.R.K.Patel, learned
counsel for the applicant and Ms.Mauna M.Bhatt, learned counsel for
the respondent and have perused the contents of the application as
well as the affidavit.
It
is stated in the affidavit that the applicant had preferred Tax
Appeal No.542 of 2008 against the judgment and order dated 28.9.2007
of the Income Tax Appellate Tribunal `B’ Bench in Miscellaneous
Application No.59 of 2007 as well as common judgment and order dated
22.12.2006 rendered in IT (SS) A No.87/AHD/2001 filed by the Revenue
and IT (SS) A No.69/AHD/2001 filed by the applicant-assessee against
the order of Commissioner of Income Tax (Appeals) dated 28.5.2001
for the Block Assessment Year 1989-90 to 1998-99 and upto
28.01.1999. It is averred that at the time of filing Tax Appeal
No.542 of 2008 on 14.2.2008, the applicant-assessee had
inadvertently, and under a mistaken belief, preferred only one
appeal instead of preferring two appeals, arising out of the order
of the Tribunal wherein the appeal and cross-appeals had been
decided. It is stated that, when Tax Appeal No.542 of 2008 came up
for regular admission/ hearing on 8.8.2008 before the Court, the
question of limitation arose and while examining the same, it was
noticed that instead of filing two appeals raising the same
questions of law arising out of the common judgment and order of the
Tribunal, only one Tax Appeal had been preferred by the
applicant-assessee and, therefore, the applicant-assessee sought
time to file another appeal along with the application for
condonation of delay, and that is how the present application for
condonation of delay has been filed in the background stated
hereinabove.
It
is submitted by the learned counsel for the applicant that the
applicant-assessee had no intention of giving up the lis and nor has
he been negligent in pursuing the same and, therefore, the delay may
be condoned.
On
the other hand, the learned counsel for the respondent has opposed
the application.
In
view of the averments made in the application as well as the further
affidavit, as mentioned hereinabove, we find that the
applicant-assessee has not been negligent in pursuing the legal
remedy. The record does not indicate that the applicant has
abandoned the lis or has remained careless at any point of time and,
therefore, in our view, the delay deserves to be condoned.
Accordingly, the application is allowed. The delay of 407 days
occasioned in filing the Tax Appeal is condoned. Rule is made
absolute with no order as to costs.
(D.A.Mehta,
J.)
(Smt.Abhilasha
Kumari, J.)
(sunil)
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