2012 (7) TMI 520

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.....7.2005. The Prothonotary & Senior Master by an order dated 14.2.2006 passed the usual directions for removal of office objections on the memo of appeal and to have the appeal numbered and registered on or before 7.3.2006, failing which the appeal was to stand rejected under Rule 986 of the High Court Rules (Original Side). The appellant having failed to remove the office objections, the appeal automatically stood dismissed on 8.3.2006. The office copy of the appeal however, indicates that all the objections were permitted to be removed and were removed on 28.4.2006. The file bears the confirmation of the Income Tax Inspector stating that all the objections had been removed on 28.4.2006. 3. The office ought not to have permitted the o....

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....oved albeit after the due date. Mr.Mistri stated that paragraph 2 contains a false statement to the effect that the Income Tax Department was not informed of the order dated 14.2.2006 by the Central Government advocate attached to the Ministry of Law and Justice. He submitted that the fact that the Income Tax Inspector had removed the office objections belied the statement. The statement is indeed incorrect. We hesitate however to hold it to be a false statement as the possibility of a communication gap cannot be ruled out. 6. Subsequently the records pertaining to the appeal were transferred to the Income Tax Department from the Ministry of Law and Justice. 7. The appellant had on 10.9.2008 engaged an advocate to represent the depart....

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....ission, we must proceed on the basis that the appeal will be ultimately allowed. This would have been preceded by the office objections having been removed by 7.3.2006, and the appeal having been admitted shortly thereafter. Even in that event in the normal course, the appeal would not have been heard by today. Presently appeals of the year 2000 are being placed on the weekly board for final hearing. Thus in any event, if we are to proceed on the basis that the appellant succeeds, the respondent would have been exposed to the liability to pay interest, in any event. 12. There is of course the possibility of the appeal having been finally heard at the stage of admission and decided in the appellant's favour and the respondent then having ....

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.... facts had been pleaded and established. We have on the one hand the respondent's predicament of being exposed to interest and penalty on account of the delay. On the other hand, is the consequence of a dismissal of the appeal resulting in a possible loss to the revenue in a matter where some of the allegations especially relating to the alleged hawala transactions are serious. The scales in this case must tip in the appellant's favour for if the respondent loses, the prejudice would not be as severe upon him as it would be to the revenue if the appeal is dismissed due to the alleged negligence of some of its officers. 16. Mr.Mistri relied upon the judgment of the Supreme Court in the case of Office of the Chief Post Master General & Ors....