TMI Blog2012 (7) TMI 520X X X X Extracts X X X X X X X X Extracts X X X X ..... loss to the revenue in a matter where some of the allegations especially relating to the alleged hawala transactions are serious - there is a reasonable explanation for the delay in this case. - INCOME TAX APPEAL (LODGING) NO.845 OF 2005 - - - Dated:- 9-7-2012 - S.J. VAZIFDAR AND M.S. SANKLECHA, JJ. Mr.Vimal Gupta for the Appellant. Mr.J.D. Mistri, Senior Counsel with Mr.K. Gopal and Mr.Jitendra Singh for the Respondent. ORAL JUDGMENT (PER S.J. VAZIFDAR, J.) :- 1. This is the appellant's notice of motion to condone the delay of 2046 days in taking out the notice of motion and for an order restoring the appeal dismissed by virtue of an order dated 14.2.2006. 2. The appeal was filed on 1.7.2005. The Prothonotary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal had been filed and the objections had been removed, the appellant's officers carried the impression that the appeal would be placed on board for admission in normal course. Indeed, there are appeals pending at the stage of admission for many years. 5. Mr.Mistri, strongly opposed this application, stating that there was no valid explanation for the inordinate delay. There is no doubt some confusion about what is stated in paragraph 2 of the affidavit in support filed by the Income Tax Officer. It is stated that the objections were not removed in time and as a result thereof, the appeal stood dismissed under Rule 986. The affiant obviously did not notice or was not informed that the objections had been removed albeit after the due date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t decisive on the issue whether the delay ought to be condoned or not, it is pertinent to note that the matter involves a demand of an extremely large amount and in which there are serious allegations. Whether they are well founded or not is another matter. 10. Mr.Mistri submitted that on account of the appellant's negligence, the respondent ought not to be prejudiced. He submitted that in the event of the appeal being allowed, the respondent would be exposed to interest of about Rs.8.00 crores which they would otherwise not have been liable for if the objections had been removed in time. 11. Although the argument appears attractive at first blush, it is not well founded. For the purpose of this submission, we must proceed on the basis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to safeguard himself against any liability towards interest and penalty. We are not inclined to reject the appeal merely on a hypothetical argument. This is not a mere technicality. The demand was of about Rs.8.00 crores. Had the respondent stated this on affidavit the appellant would have had an opportunity of meeting the case. The respondent would then have had to prove that he would have been ready and willing to make the deposit. Had the demand been a smaller amount, it may have made a difference. It would be unfair to dismiss the application on the basis of a submission which the appellant has not had an opportunity of contesting. 15. There is another facet to this argument even if necessary facts had been pleaded and established. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to be dismissed on the ground of delay. For the reasons stated above, we are of the opinion that there is a reasonable explanation for the delay in this case. 17. In the circumstances, the notice of motion is made absolute in terms of prayers (A) and (B) subject to the appellant paying the costs fixed at Rs.10,000/- to the respondent on or before ..... X X X X Extracts X X X X X X X X Extracts X X X X
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