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TMI Blog2015 (2) TMI 507X X X X Extracts X X X X X X X X Extracts X X X X ..... We are of the considered opinion that only because the applicant has succeeded on the same issue for the Assessment Year 2008-09, the same can not be said to be a sufficient cause so as to condone the delay of five years for the applicant to approach this Court in filing the appeal. - Decided against assessee. - Notice of Motion No. 1004 of 2014, Income Tax Appeal (Lodg) No. 874 of 2014 - - - Dated:- 13-2-2015 - M. S. Sanklecha And G. S. Kulkarni,JJ. For the Petitioner : Ms. A. Vissanji i/b. Mr. S. J. Mehta For the Respondent : Mr. Ashok Kotangle with Mr. Arjun Nagarajan ORDER (Per G.S.Kulkarni, J.) 1. The applicant has taken out this Notice of Motion seeking condonation of delay of about five years (1825 days) in filing an appeal under Section 260A of the Income Tax Act,1961 (for short the Act ) against the order dated 31.10.2008 passed by the Income Tax Appellate Tribunal (for short Tribunal ) for the Assessment Year 2003-04. 2. The Tribunal's order was received by the applicant on 26.11.2008. The plea of the applicant before the Tribunal was interalia in regard to the principle of mutuality in regard to transfer fees received by the appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icant's own case, the Tribunal by its order dated 11.1.2013 had held in favour of the applicant for the Assessment year 2007-08, and therefore, the applicant decided to pursue the proceedings for the Assessment Year 2003-04. The applicant, therefore, filed Miscellaneous Application on 3.5.2013 seeking rectification of the order dated 31.10.2008 which however came to be rejected and thereafter decided to file the appeal in question. It is submitted that the applicant has thus a sufficient cause for condonation of delay as the law came to be settled in the case of Sind Co-operative Housing Society Ltd. (supra) and Mittal Co-operative Society Ltd. (supra), which was not the position when the Tribunal rejected the appeal of the applicant by an order dated 31.10.2008. It is submitted that in view of this subsequent development in law, the applicant become entitled to pursue its appeal against the order dated 31.10.2008 passed by the Tribunal by seeking condonation of delay in filing the appeal. In support of this submission, the learned Counsel for the applicant has relied on the following decisions:- (I) Commissioner of Income Tax Vs. Sothia Mining and Manufacturing Corporat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed for the Assessment Year 2007-08. In our opinion the Tribunal deciding in favour of the applicant for the subsequent years, applying the decisions of this Court, would not enure to the benefit of the applicant to reopen the issue concluded by the Orders dated 31.10.2008 passed by the Tribunal and accepted by the applicant. The delay is inordinate. 7. We are of the opinion that the reasons as shown by the applicant cannot fall within the parameters of sufficient cause so as to confer a benefit of condonation to the applicant. This is for the reason that the applicant had taken a well considered decision not to move further proceedings against the order dated 31.10.2008. Applying the test of a prudent litigant it cannot be held that once the applicant by his own volition had decided to accept a judicial order, the applicant can at any time assail the same may be for the reason that subsequently new decisions are rendered on that issue. Section 5 of the Limitation Act cannot be stretched to bring about a situation of unsettling judicial decisions which stood accepted by the parties. If the contention of the applicant is accepted, it would create a situation of chaos and unsettl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of deductibility of such expenses. The Income Tax Officer had also not allowed this deduction during the course of respective assessment. The assessments were finalised subsequently in the year 1966. The Supreme Court had reversed the view taken by this Court and other High Courts in India and same was reported in the case India Cements Ltd. Vs. Commissioner of Income Tax and held that such expenditure must be treated as revenue expenditure and therefore, deduction thereof should be given from the gross income earned by the concerned assessee. The petitioner having received the knowledge of the decision of the Supreme Court, moved the Commissioner of Income Tax by a revision application on 26.4.1966. The Commissioner issued a notice to the petitioner recording as to why the application be not treated as time barred. The petitioner responded to the show cause notice stating that the view taken by the Bombay and other High Courts as regards the allowance of expenditure was upset by the Supreme Court in the case of India Cements Ltd. and has finally laid down principles of law in that regard. It was stated that in these circumstances the petitioner had moved the application for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw as brought about by the decision of the Supreme Court. The Delhi High Court while holding that in considering a delay condonation application facts and circumstances of the each case are required to be considered, held that the facts of the case warranted condonation of delay of 25 days. The High Court has made the following observations:- .......... We are of the opinion that decision shall have to be taken in the facts of each individual case whether such circumstance constitutes a sufficient cause for condoning the delay within the meaning of Section 5 of the Limitation Act. In the case at hand the decision was given by the Tribunal rejecting the petitioner's application under Section 256(1) of the Income-tax Act on 30.5.95 forming an opinion that the issue being governed by an available decision of jurisdiction High Court, no referable question of law arose from its appellate order. So long as the decision of Delhi High Court in Escorts Ltd.' s case (supra) held the field, it would have served no useful purpose in pursuing the matter further. Rather it would have amounted to an attempt at striking the head against the wall. Shortly thereafter the law was settl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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