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TMI Blog2016 (1) TMI 1439X X X X Extracts X X X X X X X X Extracts X X X X ..... 2009, while the appeal is filed on 17th December, 2014. 2. The learned Counsel appearing for the Applicant pointed out the following events leading to the delay in filing the appeal is as under:- (a) The appeal for Assessment Year 1998-1999 filed by the Applicant before the Tribunal claimed relief on the following issues: (i) The reopening of the assessment was without jurisdiction; and (ii) The Appellant was entitled to deduction under Section 80IB of the Income Tax Act, 1961 (the Act) in respect of the customs duty drawback. Before the Tribunal, so far as issue (i) above viz: of reopening of assessment was concerned, the Applicant did not press the same and it was dismissed as not pressed. However, the challenge on the second issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 29th April, 2011. The Applicant, thereafter, filed two more Miscellaneous Application, seeking to rectify the order dated 5th June, 2009 on the reopening of assessment issue and both these subsequent applications also came to be rejected by the Tribunal. The last of such rejection of the Miscellaneous Applications filed by the Applicant was by order dated 11th October, 2013 and received by the Applicant on 30th June, 2014; (e) Being aggrieved, the Applicant filed a Writ Petition No. 1307 of 2014 challenging the Tribunal's order dated 11th October, 2013, dismissing the Applicant's Miscellaneous Application for rectification of order dated 5th June, 2009. On 30th July, 2014, the Writ Petition No.1307 of 2014 was dismissed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1, (when the Applicant filed its first Miscellaneous Application) upto 30th October, 2014, (when the Applicant withdrew its Income Tax Appeal from the order on Miscellaneous Application) should be excluded. This is so as the Applicant was bonafide prosecuting its remedy by filing an application for rectification before the Tribunal. In support, reliance is placed upon the decision of the Supreme Court in M. P. Steel Corporation v/s. Commissioner of Central Excise, (2015) 7 SCC 58; and (c) A liberal approach in the applications for condonation of delay has to be adopted in the present facts and the delay be condoned. This would enable adjudication of the issue of reopening of assessments on merits. 4. As against the above, Mr. Mohanty, lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be counter balanced by ensuring that the law of limitation which provides for definite consequence on the rights of the parties does not become ineffective. The rule of limitation is provided for general welfare of the society so as to put a period beyond which a party cannot agitate an issue in litigation. The rationale for the same is that once a litigation is decided, the dispute must repose. This is particularly so, if the party aggrieved by the order does not agitate the issue before the appellate forum within the time provided. The opposite party can then proceed on the basis that the dispute is settled and arrange its affairs on that basis. Thus, if the aggrieved party has not moved the appellate forum within the prescribed time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication 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 prev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision of the Apex Court in Liberty India (supra) is further evidence of the Applicant not acting diligently. There is no explanation for the aforesaid conduct on the part of the Applicant in the affidavit in support of the application. This clearly establishes that Applicant was not diligent. 8. 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, on the basis of the Apex Court's decision in M. P. Steel C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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