Back
2016 Supreme(Bom) 967
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
M. S. SANKLECHA, A. K. MENON, JJ.
Cipla Limited – Appellant
Versus
The Assistant Commissioner of Income Tax & anr. – Respondent
CROSS OBJECTION NO.14 OF 2010 ARISING IN INCOME TAX PPEAL (L) NO.1589 OF 2010
Decided On : 09-08-2016
For the Appellant : Mr. Nitesh Joshi a/w Netaji Gawade i/b. Sanjay Udeshi & Co.
For the Respondent: Mr. Ashok Kotangle a/w Ms. Padma Diwakar
The main legal point established in the judgment is that a Cross Objection is not maintainable if the appeal itself has been rejected for non-compliance with office objections.
Headnote:
Cross Objection - Maintainability - Order 41 Rule 22 - Summary
Fact of the Case:
The Cross Objection pertains to the rejection of the Income Tax Appeal due to non-removal of office objections. The applicant did not file its own Income Tax Appeal within the prescribed time.
Finding of the Court:
The Court found that the Cross Objection was not maintainable as the appeal itself was rejected for non-removal of office objections. The Court also rejected the alternate submission to treat the Cross Objection as an Appeal and condone the delay.
Issues: The main issue was the maintainability of the Cross Objection in view of the rejection of the appeal for non-removal of office objections.
Ratio Decidendi: The Court held that the Cross Objection was not maintainable as the appeal itself was rejected for non-removal of office objections. The Court also clarified that the applicant could seek condonation of delay by filing a separate application for appeal.
Final Decision: The Cross Objection was dismissed and there was no order as to costs.
A.K. MENON, J.
1. The short point that arises in the present Cross Objection pertains to its maintainability in view of the fact that the Income Tax Appeal bearing Lodging No.1589 of 2010 was rejected vide order dated 9th November, 2010 for non-removal of office objections. The learned counsel for the applicants/petitioners in the Cross Objection submits that the Cross Objection maintainable notwithstanding the rejection of the appeal in view of the fact that the applicant had notice of the hearing of appeal and it is pursuant to said notice that the Cross Objection came to be filed and within time prescribed by law. It is an admitted position that the applicant did not file its own Income Tax Appeal within the time prescribed by law.
2. In order to help focus on the issue to be decided, it will be necessary to make note of a few dates:
(i) The impugned Order of the Income Tax Appellate Tribunal in respect of the assessment year 1999-2000 and 2000-2001 was passed on 17th February, 2010. The present Cross Objection pertains to A.Y. 2000-2001;
(ii) Being aggrieved by the order of the Tribunal, the Revenue filed its appeal before this Court on 30th June, 2010 being Income Tax Appeal (Lodging) No.1589 of 2010.
(iii) The Department's appeal came to be served on the applicant-assessee on 10th August, 2010.
(iv) The appeal appeared on board on 23rd August, 2010, apparently it was listed under the caption of “Covered Matter”.
3. Both Revenue and the applicant were represented. The order of the Court reads as follows:-
“PC : By Consent. Stand over to 30/08/2010.”
4. On 30th October, 2010 both parties were represented and by consent the matter came to be adjourned to 13th September, 2010. On 13th September, 2010 by consent, the matter was adjourned to 29th September, 2010 to be placed along with Cross Objection (Lodging) No.24 of 2010. On 29th September, 2010 by consent it was once again adjourned to 4th October, 2010. On 4th October, 2010 it appears that the Court noticed that objections in the Appeal as well as the Cross Objection were still not removed. As a result, the Appeal and Cross Objection came to be adjourned, by consent, by four weeks only for removal of office objections failing which the matters were to stand dismissed without further reference to the Court.
5. It transpires that the objections in the Appeal were not removed. As a result, on 9th November, 2010 the Assistant Prothonotary Appeal Cell recorded as follows:-
“Dismissed on 9/11/2010 pursuant to an order dated 4/10/2010 passed by the Hon'ble Division Bench consisting of Hon'ble Shri Justice V. C. Daga & Hon'ble Shri Justice R. M. Savant for non compliance of the order within prescribe time.”
6. In the meantime, the present Cross Objection came to be numbered after a 'filing' Order on 9th November, 2010. The Cross Objection has since remained pending. The Cross Objection came up for hearing and on 5th July, 2016 at the request of learned counsel for the applicant it came to adjourned to 12th July, 2016 and thereafter for a few dates by consent of parties. On 26th July, 2016 the matter was heard for some time when we questioned the maintainability of the Cross Objection on an objection was raised by the Revenue.
7. Mr. Kotangle, the learned counsel appearing for the Revenue pointed out that the Income Tax Appeal (L) No.1589 of 2010 had already been rejected. We, therefore, queried counsel for the Applicant as to how the Cross Objection is maintainable in view of the fact that Order 41 Rule 22 clearly provides that the Cross Objection can be entertained during the pendency of an appeal and even if an original appeal is withdrawn or is dismissed for default, the Cross Objection will nevertheless be heard and determined after notice to the other party. At this, Mr. Joshi, the learned counsel for the assessee submitted that the Cross Objection, in the present set of facts, is clearly maintainable since the assessee had notice of the hearing of the appeal on 23rd August, 201
