The judgment of the court was delivered by
This Notice of Motion has been taken out by the applicant to recall the order dated 19th August, 2016 passed by this Court. By the Order dated 19th August, 2016 passed in the Notice of Motion No. 1978/2016 taken out by the Revenue seeking a recall of the order dated 22nd April, 2016 by which Notice of Motion (L) No.807/2016 was dismissed. The Notice of Motion (L) No. 807 of 2016 was taken out by the Revenue was for condonation of delay of 110 days in taking out the application and for setting aside the order dated 19th November, 2015 passed by the Prothonotary and Senior Master under Rule 986 of the Bombay High Court (Original Side) Rules rejecting the Revenue's appeal.
2. The present Notice of Motion seeks a recall of the order dated 19th August, 2016 and does not make any prayer for recall of an earlier order dated 22nd April, 2016 of this Court or for setting aside the order of this Court passed on 19th November, 2015 by the Prothonotary and Senior Master rejecting the applicant's appeal for non removal of office objection. Thus considering this application would be an academic exercise as even if the prayer of recall of the order dated 19th August, 2016 is granted, yet the earlier orders of dismissal of the appeal would stand unaffected.
3. The applicant's appeal to this Court from the Income Tax Appellate Tribunal was rejected on 19th November, 2015 by the Prothonotary & Senior Master, under Rule 986 of the Bombay High Court (Original Side) Rules. Thus the first Notice of Motion taken out by the applicant Revenue being Notice of Motion (L) No. 807/2016 for setting aside order dated 19th November, 2015 was dismissed on 22nd April, 2016 after hearing the parties by a speaking order. Thereafter the applicant Revenue took out another Notice of Motion being Notice of Motion No. 1978/2016. This time the Notice of Motion was taken out to recall the order dated 22nd April, 2016. By order dated 19th August, 2016 and after hearing the parties this application was also rejected by a speaking order.
4. As the orders passed on 22nd April, 2016 and 19th August, 2016 were speaking orders after hearing parties dismissing the Notice of Motion, we asked Mr. Mohanty as to how this application was maintainable. Mr. Mohanty states because the Court entertained the second Notice of Motion being Notice of Motion No.1978/2016 seeking to recall the order dated 22nd April, 2016 leading to the order dated 19th August, 2016, the present Notice of Motion has been filed.
5. We heard the second Notice of Motion being Notice of Motion No. 1978/2016 only to ensure that no injustice is being caused to the Revenue even though the same was really in the nature of a Review Application. We did not dismiss the motion as not maintainable and heard the application as though it was a Review Application. This indulgence on our part seems to have been misunderstood. In this case also if we treat this application as a Review Application, we find that the parameters to satisfy a Review of order dated 19th August, 2016 is not satisfied i.e. it is not the case of the applicant Revenue that any new evidence was discovered after the passing of the order or that there is any mistake apparent on record which would justify review of the order dated 19th August, 2016. The application is only seeking an opportunity to argue on facts which would have been urged earlier but not urged when order dated 19th August, 2016 was passed on the aforesaid ground alone, this application is being dismissed.
6. In any case, even if for the purposes of this application, we ignore the fact that we had passed orders earlier, the present application would still be liable to be dismissed. This is for the reason that the genesis of the present Notice of Motion is the order dated 19th November, 2015 passed by the Prothonotary and Senior Master which has granted time to remove office objections on or before 17th December, 2015 failing which the petitioner appeal was to stand rejected for non removal of office objections. The applicant Revenue failed to remove office objection resulting in the appeal itself being rejected by the Prothonotary and Senior Master.The present affidavit like the earlier affidavits in support of the earlier Notices of Motion offers the same reasons i.e. administrative difficulties namely shortage of staff which has resulted in non removal of office objections. This can hardly be a reason for filing an appeal which is defective and then claiming that the same could not be removed because of administrative difficulties without setting out any particulars.
7. In fact, the Supreme Court in the case of Post Master General and Others vs. Living Media India Limited and Another (2012) 3 SCC 563 has interalia observed as follows :
“27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.
28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafides, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.
29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months / years due to considerable degree of procedural red tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few”
8. Therefore we see no reason to entertain the present Notice of Motion. In view of the repetitive applications filed by the Revenue it would appear to be a fit case to impose costs. Although we are not imposing costs, we do put the revenue to notice that repeated applications for recall of speaking orders passed after hearing the parties, cannot be filed. In future we may be compelled to impose costs upon the Officers concerned for making such repeated applications leading to loss of scarce judicial time. Even otherwise i.e. if we for the purposes of this application, ignore the earlier speaking orders we find that no sufficient cause has been made to entertain this application.
9. Notice of motion dismissed. No order as to costs.