By TIOL News Service

MUMBAI, FEB 027, 2015: THE issue before the Bench is - Whether if an assessee once accepts a judicial order, it is not open to it to assail the same for reasons that different decisions were subsequently rendered on the same issue. YES is the answer.

Facts of the case

The Tribunal's order for the AY 2003-04 was received by the applicant on 26.11.2008. The plea of the applicant before the Tribunal was inter-alia in regard to the principle of mutuality in regard to transfer fees received by the applicant. The Tribunal following the decision of the Special Bench in the Case of "Walkeshwar Triveni Co-operative Housing Society Ltd. Vs. ITO, (267 ITR (AT) 86)" dismissed the appeal preferred by the applicants. The applicant states that as their claim was rejected by three Authorities viz. the AO, CIT(A) as also the Tribunal and there was no judgment of the jurisdictional High Court favouring the applicant, the Officer bearers of the applicant decided not to carry the matter further.

However in the applicant's own case for the AY 2007-08, the Tribunal, by an order dated 11.1.2013 held in favour of the applicant by following the judgment of this court in the case of "Sind Co-operative Housing Society Ltd., 2009-TIOL-366-HC-MUM-IT and the decision in the case of "Mittal Premises Cooperative Society Ltd., 2009-TIOL-548-HC-MUM-IT" which was delivered in the meantime. The applicant, therefore, filed a Miscellaneous Application on 3.5.2013 before the Tribunal for the AY 2003-04 praying for setting aside the order dated 31.10.2008 on the ground that the Tribunal should follow the decisions in the case of "Sind Co-operative Housing Society Ltd." and "Mittal Premises Co-operative Society Ltd." and rectify its decision dated 31.10.2008. By an order dated 7.2.2014, this Miscellaneous Application came to be rejected by the Tribunal. The applicant, therefore, decided to prefer this appeal u/s 260A of the Act to assail the judgment dated 31.10.2008 passed by the Tribunal for the AY 2003-04. The last date to file the appeal was 24.4.2009 and the same came to be filed by the applicants on 29.4.2014 after a delay of about five years which is sought to be condoned by this Notice of Motion.

Having heard the matter, the High Court held that,

++ the issue which falls for consideration is whether the applicant has shown sufficient cause so as to become entitled for condonation of delay of five years in preferring the appeal against the order dated 31.10.2008 passed by the Tribunal. Admittedly at the relevant time the applicant had accepted the orders passed by the Tribunal on the ground that three Authorities have decided against it. The applicant was completely conscious of the fact that there was no decision of the Jurisdictional High Court in regard to the said issue. This was more a reason for the applicant to pursue the proceedings. The applicant, however, accepted the orders passed by the Tribunal and decided not to pursue the proceedings. In the meantime this Court had decided the same in favour of the applicant in the case of "Sind Cooperative Housing Society Ltd." and "Mittal Co-operative Society Ltd." The Tribunal applying the law laid down in these decisions decided in favour of the applicant by an order dated 11.1.2013 passed for the AY 2007-08. The Tribunal deciding in favour of the applicant for the subsequent years, applying the decisions of this Court, would not ensure to the benefit of the applicant to reopen the issue concluded by the Orders dated 31.10.2008 passed by the Tribunal and accepted by the applicant. The delay is inordinate;

++ the reasons as shown by the applicant cannot fall within the parameters of sufficient cause so as to confer a benefit of condonation to the applicant. This is for the reason that the applicant had taken a well considered decision not to move further proceedings against the order dated 31.10.2008. Applying the test of a prudent litigant it cannot be held that once the applicant by his own volition had decided to accept a judicial order, the applicant can at any time assail the same may be for the reason that subsequently new decisions are rendered on that issue. Section 5 of the Limitation Act cannot be stretched to bring about a situation of unsettling judicial decisions which stood accepted by the parties. If the contention of the applicant is accepted, it would create a situation of chaos and unsettling various orders passed from time to time by the Tribunal as accepted by the parties. The legislative mandate in stipulating a limitation to file an appeal within the prescribed limitation cannot be permitted to be defeated when a litigant has taken a decision not to pursue further proceedings. A new ruling is no ground for reviewing a previous judgment. If this is permitted, the inevitable consequence is confusion, chaos, uncertainty and inconvenience as then no orders can ever attain finality though accepted by parties;

++ only because the applicant has succeeded on the same issue for the AY 2008-09, the same cannot be said to be a sufficient cause so as to condone the delay of five years for the applicant to approach this Court in filing the appeal. In the light of the above observations, the applicant has not shown sufficient cause in seeking condonation of delay.

(See 2015-TIOL-510-HC-MUM-IT)