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Commissioner of Income Tax Vs. Poonamchand M. Shah (by L/Rs) - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtMumbai High Court
Decided On
Case NumberNotice of Motion No. 1031 of 1982
Judge
Reported in(1984)39CTR(Bom)123
ActsIncome Tax Act, 1961, Sections 261
AppellantCommissioner of Income Tax
RespondentPoonamchand M. Shah (by L/Rs)
Excerpt:
- - 7. in the result, the notice of motion must fail and will stand dismissed with costs......of this high court in itr no. 444 of 1978 which decision was given on 7-10-1981.2. the prescribed period of limitation for filing such a petition is sixth days. it is the case of the applicant that there is a delay of 54 days which is sought to be condoned. as against the prescribed period of limitation, the period of delay sought to be condoned is comparatively large.3. however, even larger delay would be required to be condoned if sufficient cause is made out to explain every day's delay. in the instant case, the delay appears to have resulted from a combination of several factors such as forgetfulness on the part of the staff of the central government advocate, archaic practices followed between the central government advocate and the it department in particular regarding amounts.....
Judgment:

Desai, J.

1. This motion is taken out for condoning the delay in filing the Petition for Leave to Appeal to the Supreme Court. The proposed appeal is from the decision of this High Court in ITR No. 444 of 1978 which decision was given on 7-10-1981.

2. The prescribed period of limitation for filing such a petition is sixth days. It is the case of the applicant that there is a delay of 54 days which is sought to be condoned. As against the prescribed period of limitation, the period of delay sought to be condoned is comparatively large.

3. However, even larger delay would be required to be condoned if sufficient cause is made out to explain every day's delay. In the instant case, the delay appears to have resulted from a combination of several factors such as forgetfulness on the part of the staff of the Central Government Advocate, archaic practices followed between the Central Government Advocate and the IT Department in particular regarding amounts which the Central Government Advocate can spend without obtaining specific sanction and similar matters. We have carefully gone through the affidavit filed by the ITO and the Superintendent working in the Office Government, Legal Department. We are of the opinion that the material brought on record in these two affidavits would not entitle the court to condone the delay of this period. We are conscious that in the decision in ITR No. 444 of 1978 a large amount was involved but the merit of the decision or the importance of the proceeding or the stake involved can hardly have any relevance on the question of condonation of delay.

4. We have also ascertained as a matter of practice and rules that as far as the Original Side is concerned it was unnecessary for the applicant to have his hand a certified copy of the judgment in ITR No. 444 of 1978 before filing the petition for leave to appeal. A certified copy of the judgment is not required to be filed along with the petition. Thus the only purpose of applying for certified copy of the judgment and then waiting till one gets it would be to secure an extension of the period of limitation. In such a state of affairs, when there us further delay and the proceeding is filed beyond the statutory period of limitations the court should not ordinarily countenance an application for condonation of delay, unless the same is properly and justifiable explained.

5. It may also be pointed out that the Leave Petition was filed on 26-7-1982. Paragraph 6 of the same states that the petition was within time. The notice of motion for condonation of delay was taken out a week late i.e. on 2-8-1982. It is thus clear that on the day on which the Leave Petition was filed, the application was not aware that he was beyond time by over 50 days.

6. In our opinion, when the totality of circumstances considered, no cause is made out for condonation of delay of this magnitude.

7. In the result, the notice of motion must fail and will stand dismissed with costs.

8. The office must now treat this petition as barred by limitation and also as disposed of.


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