Shanti Enterprises vs Assistant Commissioner Of Income ...
2022 Latest Caselaw 8995 Guj

       C/CA/767/2021                               ORDER DATED: 11/10/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                  R/CIVIL APPLICATION NO. 767 of 2021
                    In F/TAX APPEAL NO. 6790 of 2021
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                      SHANTI ENTERPRISES
                             Versus
        ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 1(2)
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Appearance:
MR MANISH J SHAH(1320) for the Applicant(s) No. 1
MRS KALPANAK RAVAL(1046) for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
           and
           HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                       Date : 11/10/2022
                        ORAL ORDER

(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)

Heard learned advocate Mr. Manish Shah for the applicant and learned advocate Mr. Nikunt Raval for the respondent.

2. This application is filed praying to condone the delay of 603 days, which is claimed to be of 250 days by the applicant assesse. This delay has occurred at the end of appellant assessee in preferring appeal against judgment and order of the Income Tax Appellate Tribunal in ITA No. 3065/Ahd/2016 for the Assessment Year 2012-2013. The order of the Tribunal was pronounced on 27.2.2019 and the same was stated to have been received on 5.3.2019. The limitation for filling the appeal expired on 3.7.2019.

3. The ground urged for explaining the delay was that against the said order of the Tribunal, the assessee had filed Misc. Application No. 38 of 2019 on 22.4.2019 seeking to review of the order. The Tribunal rejected the application on 15.12.2020 which order was received by the applicant on 30.01.2021.

C/CA/767/2021 ORDER DATED: 11/10/2022

4. It was submitted by learned advocate for the applicant that thus the applicant was prosecuting bona fide another remedy. The time elapsed in that. It was further submitted that thus there was no delay in filling the Tax Appeal under section 260A of the Income Tax Act. It was submitted that the date of receipt of the order of the Misc. Application would have to be considered for starting point of limitation.

5. While learned advocate for the respondent opposed the application, it could not be disputed that in similar set of circumstances, this court in Jamadar Travels Through Partner Mehmood Pritamsinh Jamadar vs. Commissioner of Income Tax III being Civil Application No. 902 of 2021 in Tax Appeal No. 7010 of 2021 dated 20.12.2021 observed that filling Misc. Application for review could be said to be a bona fide litigation by the party and was a genuine reason not to approach the appellate court in time.

6. In the above circumstance, when the applicant assessee was prosecuting the review application before the Income Tax Appellate Tribunal and when the time was consumed in such prosecution, it was a bona fide ground in pursuing a legal remedy. The period of limitation would have to be reckoned accordingly. Sufficient cause could be said to have been made out for explaining the delay.

7. Accordingly, present application is allowed. Delay is condoned in preferring the appeal. Rule is made absolute.

(N.V.ANJARIA, J)

(BHARGAV D. KARIA, J) C.M. JOSHI