Calcutta High Court (Appellete Side)
Shri Baijnath Saboo And Others vs The Income Tax Officer 'A' Ward on 13 April, 2010
Author: Soumitra Pal
Bench: Soumitra Pal
.2010
C.R. 3100 (W) of 1974
Re: C.A.N. 2414 of 2009
and
C.A.N. 2958 of 2010
Shri Baijnath Saboo and others
Vs.
The Income Tax Officer 'A' Ward, Refund Circle,
Calcutta and others
Mr. J.P. Khaitan, Senior Advocate
Mr. Samit Talukdar, Senior Advocate
Mr. Aniruddha Roy
Mr. Soumya Dutta
Mr. R.K. Rai ... for the petitioners/
applicants
Mr. Shibdas Banerjee, Senior Advocate
Mr. Farhan Gaffar ... for the respondents
In this application being C.A.N. 2958 of 2010, the petitioners have prayed for restoring the writ petition being C.R. 3100(W) of 1974 to its file and number after considering the delay, if any.
The background prior to the filing of the application for restoration requires to be mentioned. The petitioners had filed an application being C.A.N. 2414 of 2009 praying primarily to reconstruct the records on the basis of the pleadings available with the petitioners with regard to the writ petition being C.R.3100 (W) of 1974. It appears from the application that in the said writ petition challenge was to the notice dated 27th March, 1974 for the assessment year 1969-70 under section 148 of the Income Tax Act, 1961. From the annexures it appears the matter was moved on 27th May, 1974. After hearing the parties Rule was issued and an interim order of injunction was granted in terms of prayer (e) of the writ petition till the disposal of the Rule. Rule was made returnable eight weeks. Directions for affidavits were also issued. It was recorded that respondents would be at liberty to continue and conclude the re-assessment proceedings. However, the demand and the order would not be communicated to the petitioner and/or enforced until disposal of the Rule.
After the application for reconstruction being C.A.N. 2144 of 2009 was moved, on 6th May, 2009 the petitioners were directed to serve copies of the application on the respondents as well as on the learned advocate appearing on behalf of Union of India. Thereafter, the matter came up on 16th February, 2009 when the Registry was directed to trace the file and to submit a report on the next date of hearing. It appears from the report dated 28th January, 2010, which is a part of the records, that as on that date the file could not be traced. Thereafter, the Registry after much difficulty traced out the register of the year 1974 relating to the said file when it appeared that Rule had been discharged on 19th December, 1977. On 16th March, 2010, on the prayer of the petitioners the matter was adjourned till 25th March, 2010 for getting necessary instruction. Thereafter, the petitioners moved the application being C.A.N. 2958 of 2010 for condoning the delay and for restoring the Civil Rule No.3100 (W) of 1974.
Mr. J.P. Khaitan, learned Senior Advocate appearing on behalf of the applicants at the very outset fairly conceded that it is difficult to justify the delay since there were laches on the part of the petitioners. According to him, since the petitioners succeeded in the assessment year 1968-69 on merits, allowing the writ petition relating to the assessment year 1969-70 to have it dismissed was a clear case of negligence. However, as the respondents by letter dated 13th November, 2006 had intimated that for the assessment year 1969-70 a sum of Rs.2069/- is outstanding and the petitioners by letters dated 20th November, 2006 and 19th February, 2007 had followed up the matter, it can be presumed that there was some communication gap between the petitioners and the erstwhile advocate on record. Since the matter was dismissed, prayer has been made to grant leave to file a fresh affidavit praying for a direction upon the Revenue to communicate the order under section 148 of the Act so that the petitioners can prefer appeals against the assessment in accordance with law.
Mr. Shibdas Banerjee, learned Senior Advocate appearing on behalf of the Revenue has submitted that since there is no scrap of paper in support of the restoration application and there is no averment in the restoration application why it could not be filed on time, no sufficient cause has been made out for restoration. So far as the prayer for fresh affidavit by the petitioners is concerned, submission is Court should not allow a cause of action which was arose 32 years back.
Heard learned Senior Advocates for the parties.
So far as the application for restoration being C.A.N. 2958 of 2010 is concerned, I find that the petitioners have tried to explain the delay in moving the application in paragraphs 7, 8, 9, 10, 11 and 12 thereof. The petitioners have tried to plead that the trustees, who had filed the writ petition, subsequently ceased to be trustees by virtue of death, resignation or otherwise. After the petitioners were appointed as trustees they from time to time followed up the matter and informed the erstwhile advocate on record and about the change of trustees and had requested him to take necessary steps to carry out the necessary amendment in the pending writ petition mentioning the names of the petitioners as present trustees in place and stead of earlier trustees through whom the said writ petition was filed. Statement has been made that the petitioners from time to time enquired about the matter from the erstwhile advocate on record and they were informed that since the record of the proceedings could not be traced, no step could be taken to amend the writ petition. Further, it has been stated that despite repeated requests the erstwhile advocate on record did not take steps in the matter. It appears from the application that in January, 2008 the petitioners came to know that the erstwhile advocate on record had expired on 20th August, 2007. Thereafter, on 22nd February, 2008 the petitioners appointed the present learned advocate on record and instructed him to take necessary steps for early disposal of the petition. On the said date the present learned advocate on record filed his Vakalatnama on behalf of the petitioners. Perusing the statements made in paragraphs 7 to 12 I find there is no statement whether instruction was given to the erstwhile advocate on record orally or in writing. Though it has been stated that the erstwhile advocate on record did not take steps despite repeated requests, no document in support of the same has been annexed to the application. The argument that pursuant to the letter dated 13th November, 2006 issued by the Assistant Director of Income Tax (E-I), Kolkata, the petitioners by letters dated 20th November, 2006 and 19th February, 2007 had taken up the matter with the Revenue regarding assessment and thus the Court should consider the matter leniently cannot be accepted as there is no explanation regarding the fact that what had prevented the petitioners from informing the erstwhile advocate on record in December, 2006 or in the early 2007 for mentioning the matter being C.R. 3100 (W) of 1974 which, according to them, was pending. Perusing the statements in the application I find that the petitioners in a subtle manner have put the entire blame on the erstwhile advocate on record which is unfortunate. Further, from a perusal of page 95 of the Register of Rules of the year 1974, copy of which is on record, I find that the rule was discharged on 19th December, 1977. Comparing with the other entries in the register particularly with regard to an entry in page 121, I find that Rule in C.R. 3100(W) was not discharged for default. Therefore, since delay of about 32 years has not been explained at all for moving the application belatedly and no sufficient cause has been made out for the restoration of the petition being C.R. No.3100 (W) of 1974, the application for restoration is dismissed. Accordingly, I declined to entertain the prayer of the petitioners to file a fresh affidavit praying for a direction upon the respondents to communicate the order under section 148 of the Act so that appeals can be preferred against the assessment. Hence, no order is passed on the application for reconstruction being CAN No. 2414 of 2009 and the same is, thus, disposed of.
Let copies of the notice dated 13th November, 2006 issued by the Assistant Director of Income Tax (E-I), Kolkata and the letters dated 20th November, 2006 and 19th February, 2007 issued by the Birla Janakalyan Trust be kept on record.
In the facts and circumstances the Revenue is entitled to cost which is assessed at Rs.1,700/- to be paid to the respondent no.3.
Let urgent photostat certified copy of this order, if applied for, be furnished to the appearing parties on priority basis.
( Soumitra Pal, J.)