2022 (11) TMI 1413 - HC - Income Tax

Condonation of delay in filing the appeal - delay in preferring the appeal is 2428 days - delay condoned subject to payment of costs HELD THAT - If we peruse the order in this appeal, a decision can be taken wherein held that order allowing the prayer for condonation is subject to payment of costs assessed at Rs. 50,000/- to be paid by the appellant to the respondent. This cost shall initially be paid by the Government, thereafter the department concerned shall make an enquiry as to who are at fault for not taking care for preservation of the records and papers. If any of the officers and/or staff are found to be negligent, costs awarded by us shall be recovered from their salaries in proportionate to their lapses, of course after giving a chance of hearing to the concerned officer and staffs. The cost has to be paid within a period of three weeks from date as prayed for the learned Counsel for the appellant. In default of payment of costs this order will stand recalled and subsequent order, if any passed in favour of revenue will also stand recalled. As respondent submits that till date the costs has not been remitted. In such circumstances, the order dated 21st November, 2011 itself provides for the contingency. It has been ordered that in default of payment of costs, the order condoning the delay will stand recalled. Thus, in absence of compliance of the direction issued by the Hon ble Division Bench in its order and the costs having not been paid to the assessee, the order is required to be recalled and is accordingly recalled.

Issues:
1. Maintainability of the appeal filed by the revenue under Section 260A of the Income Tax Act against the order passed by the Income Tax Appellate Tribunal.
2. Condonation of delay in filing the appeal and non-compliance with the direction to pay costs to the respondent/assessee.

Issue 1: Maintainability of the Appeal:
The High Court considered the objection raised by the respondent's counsel regarding the maintainability of the appeal filed by the revenue against the same impugned order previously dismissed by the Hon'ble Division Bench. The respondent argued that a fresh appeal against the same order is not maintainable as the delay in filing the appeal was already condoned in a previous application. The appellant's counsel sought time to confirm if the appeal in question challenged the same impugned order. The Court decided to set aside the issue of maintainability for the time being and examine the order of condonation of delay dated 21st November, 2011. The delay was condoned subject to the payment of costs assessed at Rs. 50,000 by the Government to the respondent/assessee. However, the costs were not remitted as per the order, leading to the Court recalling the order dated 21st November, 2011 due to non-compliance.

Issue 2: Condonation of Delay and Non-Compliance:
The High Court reviewed the order of condonation of delay dated 21st November, 2011, where the delay in preferring the appeal was 2428 days. Despite the unsatisfactory explanation provided in the petition, the delay was reluctantly condoned due to the high tax effect involved. The Court directed the Government to pay costs of Rs. 50,000 to the respondent/assessee, with a subsequent recovery from negligent officers or staff responsible for the delay. The order specified that in default of payment of costs, the order condoning the delay would stand recalled. The respondent's counsel confirmed that the costs had not been remitted till date. Consequently, as the costs were not paid as directed, the Court recalled the order dated 21st November, 2011, leading to the dismissal of the appeal filed by the revenue.

This detailed analysis of the judgment from the Calcutta High Court highlights the issues of maintainability of the appeal and the non-compliance with the direction to pay costs, resulting in the dismissal of the appeal filed by the revenue under Section 260A of the Income Tax Act.

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