2017 (1) TMI 931 - HC - Income Tax

Notice of Motion for recalling the order - condonation of delay of 110 days in taking out the application and for setting aside the order dated 19th November, 2015 passed by the Prothonotary and Senior Master under Rule 986 of the Bombay High Court (Original Side) Rules rejecting the Revenue s appeal - Held that - The present Notice of Motion seeks a recall of the order dated 19th August, 2016 and does not make any prayer for recall of an earlier order dated 22nd April, 2016 of this Court or for setting aside the order of this Court passed on 19th November, 2015 by the Prothonotary and Senior Master rejecting the applicant s appeal for non removal of office objection. Thus considering this application would be an academic exercise as even if the prayer of recall of the order dated 19th August, 2016 is granted, yet the earlier orders of dismissal of the appeal would stand unaffected. In any case, even if for the purposes of this application, we ignore the fact that we had passed orders earlier, the present application would still be liable to be dismissed. This is for the reason that the genesis of the present Notice of Motion is the order dated 19th November, 2015 passed by the Prothonotary and Senior Master which has granted time to remove office objections on or before 17th December, 2015 failing which the petitioner appeal was to stand rejected for non removal of office objections. The applicant Revenue failed to remove office objection resulting in the appeal itself being rejected by the Prothonotary and Senior Master We see no reason to entertain the present Notice of Motion. In view of the repetitive applications filed by the Revenue it would appear to be a fit case to impose costs.

Summary

Issues:
1. Recall of order dated 19th August, 2016 passed by the Court
2. Maintainability of the present Notice of Motion
3. Review application criteria not satisfied
4. Failure to remove office objections leading to appeal rejection
5. Observations from the Supreme Court regarding delay condonation
6. Imposition of costs due to repetitive applications by Revenue

Analysis:
1. The applicant sought to recall the order dated 19th August, 2016, which was passed in response to a previous application by the Revenue for condonation of delay and setting aside an earlier order. However, the Court noted that even if the recall of the order dated 19th August, 2016 was granted, the previous orders dismissing the appeal would remain unaffected, rendering the current application an academic exercise.

2. The Court highlighted that the present Notice of Motion did not include a prayer to recall the earlier order dated 22nd April, 2016, or to set aside the order of 19th November, 2015. The Court questioned the maintainability of the application, as the previous orders were speaking orders dismissing the Notice of Motion after hearing parties, making it unclear why the current application was filed.

3. Despite treating the application as a Review Application, the Court found that the criteria for a review of the order dated 19th August, 2016 were not met. The applicant did not present new evidence or demonstrate any apparent mistake on record justifying a review. The application solely aimed to argue on facts that could have been raised earlier, leading to its dismissal.

4. The genesis of the present Notice of Motion stemmed from the applicant's failure to remove office objections, resulting in the rejection of the appeal by the Prothonotary and Senior Master. The Court noted that citing administrative difficulties, such as staff shortages, as reasons for not addressing office objections was insufficient justification for filing a defective appeal.

5. The Court referenced a Supreme Court case emphasizing that government bodies must provide reasonable explanations for delays and cannot expect condonation mechanically. The Court reiterated that the law of limitation applies to all, including government departments, and condonation of delay should not be misused as a benefit.

6. Due to the repetitive nature of the applications filed by the Revenue, the Court considered imposing costs. While costs were not imposed in this instance, the Revenue was cautioned against filing repeated applications for the recall of speaking orders passed after hearing parties, highlighting the potential imposition of costs in the future due to the loss of judicial time.

In conclusion, the Court dismissed the Notice of Motion with no order as to costs, emphasizing the need for parties to adhere to procedural requirements and provide valid justifications for their applications to avoid unnecessary delays and misuse of the legal process.