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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 ..... Ltd. Vs. ITO, (267 ITR (AT) 86)" had dismissed the appeal preferred by the applicants. The applicant states that as their claim was rejected by three Authorities viz. the Assessing Officer, Commissioner of Income Tax (Appeals) as also the Tribunal and there was no judgment of the jurisdictional High Court favouring the applicant, the Officer bearers of the applicant decided not to carry the matter further. 3. However in the applicant's own case for the Assessment Year 2007- 08, the Tribunal, by an order dated 11.1.2013 held in favour of the applicant by following the judgment of this court in the case of "Sind Co-operative Housing Society Ltd., (317 ITR 47)" and the decision in the case of "Mittal Premises Cooperative Society Ltd., (320 ITR 414)" which was delivered in the meantime. The applicant, therefore, filed a Miscellaneous Application on 3.5.2013 before the Tribunal for the Assessment year 2003-04 praying for setting aside the order dated 31.10.2008 on the ground that the Tribunal should follow the decisions in the case of "Sind Co-operative Housing Society Ltd." (supra) and "Mittal Premises Co-operative Society Ltd." (supra) and rectify its decision dated 31.10.2008. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bansal and Sons Vs. Income Tax Officer, (237 ITR 65) (Delhi); (IV) Collector, Land Acquisition Vs. MST.Katiji & Ors., (167 ITR 471) (SC); (V) N.Balakrishnan Vs. M.Krishnamurthy, ((1998)7 SCC 123). 5. Learned Counsel for the respondent-revenue has made submissions to oppose the notice of motion. Learned Counsel for the respondent submits that the applicant had taken a conscious decision not to pursue the proceedings after the Tribunal had passed the order dated 31.10.2008 dismissing the appeal of the applicants. He submits that only because subsequent decisions were rendered in the case of "Sind Co-operative Housing Society Ltd." (supra) and "Mittal Cooperative Society Ltd." (supra) followed in appellant's own case by the Tribunal, ipso facto would not entitle the applicant to reopen the issue as concluded by the order dated 31.10.2008 which sought to be appealed by the applicant after a lapse of five years. It is submitted that if the applicant was of the opinion that there was no decision of the Jurisdictional High Court, it was more a reason for the applicant to pursue the matter and the applicant ought not to have accepted the decision of the Tribunal. 6. Having conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an appeal within the prescribed limitation cannot be permitted to be defeated when a litigant has taken a decision not to pursue further proceedings. A new ruling is no ground for reviewing a previous judgment. If this is permitted, the inevitable consequence is confusion, chaos, uncertainty and inconvenience as then no orders can ever attain finality though accepted by parties. 8. We now refer to the decisions as relied upon on behalf of the applicant. Even while referring to the decisions cited by the applicant, we cannot help reiterating that each application for condonation of delay has to be judged on its own facts and circumstances. At the highest guidelines for condonation of delay could be discerned for each decision of Courts. 9. The decision in the "Commissioner of Income Tax Vs. Sothia Mining and Manufacturing Corporation Ltd." (supra), the same arose out of an order passed by the Tribunal which had condoned the delay in filing the appeal by the respondent. The Tribunal had condoned the delay on the ground that there was a decision of the Supreme Court on the controversy raised and because of the said decision the Assessee had found that it had good reason to prefer an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h of Gujarat High Court held that it was the decision of the Supreme Court which really gave a cause of action to the petitioner - assessee to move the Commissioner in revision and hence, the Commissioner was in error in holding that the change of legal position brought about by "India Cements Ltd." was hardly a valid ground for condoning the delay. It was observed that the decision of the Supreme Court amounted to declaration of law as contemplated under Article 141 of the Constitution of India and that same had retrospective effect. It was held that it was only after the decision of the Supreme Court the petitioner had reason to move the Commissioner in revision with a view to obtain refund. This was accepted to be a sufficient cause. The situation in the present case is, however, quite different. The applicant had a complete opportunity to pursue the legal issue as there was no decision of the Jurisdictional High Court. What we find is that there were certain decisions of the other High Courts on the issue which have been noted in the decision of this Court in the case of "Sind Co-operative Housing Society Ltd" (supra) on the basis of which the applicants could have very well p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 256(2) of the Income-tax Act. A delay of about 25 days was occasioned for factors attributable to personal inability of the Counsel for which the litigant cannot be blamed. Factors like gross negligence, contumacy or misconduct cannot be attributed either to the litigant or to the Counsel." (emphasis supplied) This decision, in our opinion, is of no assistance to the applicant inasmuch as it is not the case that the applicant was advised by the Counsel not to pursue the proceedings in view of any conflicting position in law. 12. A reliance on behalf of the applicant on the decision of the Supreme Court in the case of "Collector, Land Acquisition Vs. MST.Katiji & Ors." (supra) and the decision in the case of "N.Balakrishnan Vs. M.Krishnamurthy" (supra) is also inappropriate in the facts of the present case. These decisions lay down the principles of law the Courts would follow to consider what would be a sufficient cause under Section 5 of the Limitation Act, permitting condonation of delay. There can be no dispute on the proposition as laid down in these decisions. These decision would not assist the applicant in view of the voluntary decision of the applicant not to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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