Somerset Place Co-operative Housing Society Ltd vs. ITO (Bombay High Court)

(i) Having considered the rival submissions, the issue which falls for our 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.” 317 ITR 47 and “Mittal Co-operative Society Ltd.” 320 ITR 414. 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 Assessment Year 2007-08. In our opinion the Tribunal deciding in favour of the applicant for the subsequent years, applying the decisions of this Court, would not enure 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.

(ii) We are of the opinion that 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.