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2016 (1) TMI 1439 - HC - Income TaxCondonation of delay for filling Rectification of mistake - reopening of assessment being without jurisdiction - recording of not pressing its grievance with regard to reopening of the assessment at the time of hearing of an appeal - HELD THAT:- The impugned order dated 5th June, 2009 of the Tribunal had no occasion to deal with the issue of reopening of the assessment. The Applicant, if aggrieved by the decision dated 5th June, 2009 of the Tribunal, incorrectly recording its withdrawal of challenge to the reopening of the assessment, the Applicant should have been filed an application for rectification immediately. The Applicant accepted the order of the Tribunal on the issue of reopening of assessment and chose not to file any Miscellaneous Application, seeking to rectify any mistake in order dated 5th June, 2009. This itself would be an indication of the fact that the Applicant was not aggrieved by the Tribunal recording that the issue of reopening of an assessment was not being pressed. This is so, as if the Applicant had any grievance, it would have filed a Miscellaneous Application. In any case, the right of filing an appeal in respect of reopening of an assessment arose when the order dated 5th June, 2009 of the Tribunal was received by the Applicant. The right of appeal of the Applicant on the issue of reopening of assessment did not arise as a consequence of the order of the Tribunal dated 23rd March, 2010 allowing the Revenue's application for rectification, withdrawing the benefit of Section 80IB of the Act to the Applicant. There is no explanation as to what prevented the Applicant from filing an application for rectification before the order dated 23rd March, 2010 of the Tribunal allowing the Revenue's application for withdrawing the benefit of Section 80IB of the Act. This event viz: order dated 23rd March, 2010 does not explain the delay from order dated 5th June, 2009 (received on 30th June, 2009) upto its first applications for rectification on 22nd February, 2011. Be that as it may, even if we accept the submission made on behalf of the Applicant that the time spent between 22nd February, 2011 to 17th December, 2014, in prosecuting the repetitive Miscellaneous Application on the same issue before the Tribunal, filing Writ Petition and appeal from the order on the Miscellaneous Applications is a bonafide and diligent pursuit of a remedy, yet the affidavit in support of the Notice of Motion makes no attempt to explain the period spent between 30th June, 2009 to 22nd February, 2011. In the present facts, we are of the view that the rectification application was moved on the ground that the recording of not pressing its grievance with regard to reopening of the assessment at the time of hearing of an appeal, leading to the impugned order dated 5th June, 2009, was not correct. Therefore, even if we exclude the period between 22nd February, 2011 to 30th October, 2014, no satisfactory explanation for the time spent between 30th June, 2009 to 22nd February, 2011,when the first Miscellaneous Application was filed i.e. 18 months. Besides, affidavit in support does not explain the delay of approximately one and half months after the withdrawal of the Appeal from the order on the Miscellaneous Application up to the filing of the accompanying appeal on 17th December, 2014. Thus, there being no explanation even attempted in the affidavit in support of the notice of motion, no occasion to condone the delay can arise. Application for condonation of delay cannot be allowed as the Applicant has not made out sufficient cause for condoning the delay.
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