Case Law Details

Case Name : Somerset Place Co-operative Housing Society Ltd Vs ITO (Bombay High Court)
Appeal Number : Notice of Motion No.1004 OF 2014 in Income Tax Appeal (LODG) NO.874 OF 2014
Date of Judgement/Order : 13/02/2015
Related Assessment Year :
Courts : All High Courts (4595) Bombay High Court (847)

The issue which falls for our consideration is whether the applicant has shown sufficient cause so as to become entitled for condonation of delay of five years in preferring the appeal against the order dated 31.10.2008 passed by the Tribunal. Admittedly at the relevant time the applicant had accepted the orders passed by the Tribunal on the ground that three Authorities have decided against it.

The applicant was completely conscious of the fact that there was no decision of the Jurisdictional High Court in regard to the said issue. This was more a reason for the applicant to pursue the proceedings. The applicant, however, accepted the orders passed by the Tribunal and decided not to pursue the proceedings. In the meantime this Court had decided the same in favour of the applicant in the case of “Sind Co-operative Housing Society Ltd.” (supra) and “Mittal Co-operative Society Ltd.” (supra). The Tribunal applying the law laid down in these decisions decided in favour of the applicant by an order dated 11.1.2013 passed 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.

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 unsettling various orders passed from time to time by the Tribunal as accepted by the parties. The legislative mandate in stipulating a limitation to file 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.

In this case 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 pursued the proceedings against the orders dated 31.10.2008 passed by the Tribunal. Despite Court this position the applicant wished not to to assert their rights and pursue the proceedings by assailing the order passed by the Tribunal.

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 Corporation Ltd., (186 ITR 182);

(II) Karamchand Premchand Pvt. Ltd. Vs. Commissioner of Income Tax, Gujarat, (101 ITR 46);

(III) Prem Chand 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).

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 assail the order of the Tribunal at the relevant time and accepting the decision of the Tribunal for the Assessment Year 2003-04. 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.

In the light of the above observations, we have no hesitation to observe that the applicant has not shown sufficient cause in seeking condonation of delay.

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