2016 (10) TMI 856 - HC - VAT and Sales Tax

Condonation of delay - bona fide belief that since the second appeal in earlier point of time is very much pending which relates to the very same period and therefore, this subsequent first appeal against regular assessment order will be kept pending - Held that - right from the beginning the innocence which has been tried to be projected appears to be not worthy to be accepted. We found that the conclusion arrived at by the Tribunal while exercising discretion is based upon the material on record and upon examination of it. Therefore, we see no reason to dislodge the said finding more particularly, when the petitioner has invoked extraordinary equitable jurisdiction. The very plea of not aware about the passing of an order by the first appellate authority is not cogently explained except by a mere assertion that neither the practitioner nor the advocate has ever informed the petitioner about the same and all thereabout for a pretty long period the petitioner has remained under a bona fide belief. The decision in the case of Brijesh Kumar and ors vs. State of Haryana and ors 2015 (7) TMI 21 - SUPREME COURT relied upon where it was held that this Court rejected the contention that a petition should be considered ignoring the delay and laches on the ground that he filed the petition just after coming to know of the relief granted by the Court in a similar case as the same cannot furnish a proper explanation for delay and laches. The Court observed that such a plea is wholly unjustified and cannot furnish any ground for ignoring delay and laches. Delay cannot be condoned - petition dismissed.

Issues Involved:
1. Legality and validity of the Tribunal's order dismissing the appeal due to delay and laches.
2. Condonation of delay in filing the second appeal.
3. Bona fide belief and conduct of the petitioner.
4. Service and awareness of the appellate order.
5. Tribunal's discretion and findings.

Detailed Analysis:

1. Legality and Validity of the Tribunal's Order:
The petition challenges the legality and validity of the Tribunal's order dated 05.11.2015, which dismissed the appeal on the grounds of delay and laches.

2. Condonation of Delay in Filing the Second Appeal:
The petitioner sought condonation of a delay of 1256 days in filing the second appeal. The Tribunal found no cogent explanation for the delay. The petitioner argued that the delay was due to a bona fide belief that the first appeal would be kept pending until the resolution of the second appeal concerning the same period. However, the Tribunal noted that the petitioner failed to provide a satisfactory explanation for the delay from 29.03.2012 to 14.10.2015.

3. Bona Fide Belief and Conduct of the Petitioner:
The petitioner claimed to have remained under a bona fide belief that the first appeal would not proceed until the second appeal was resolved. The Tribunal found this claim unconvincing and noted that the petitioner had concealed material facts, such as the passing of the regular assessment order during the pendency of the second appeal. The Tribunal concluded that the petitioner's conduct indicated mala fides and a lack of genuine intent.

4. Service and Awareness of the Appellate Order:
The petitioner contended that they were unaware of the first appellate order until receiving a recovery notice on 01.06.2015. The Tribunal found that the order was indeed served on the petitioner, as evidenced by the covering letter dated 14.08.2015. The Tribunal rejected the petitioner's claim of unawareness and found no credible explanation for the delay.

5. Tribunal's Discretion and Findings:
The Tribunal exercised its discretion based on the material on record and concluded that the petitioner's explanation for the delay was not convincing. The Tribunal highlighted that the petitioner had failed to demonstrate sufficient cause for the delay and had not acted with due diligence. The Tribunal's findings were supported by the principles laid down by the Supreme Court in cases like Brijesh Kumar vs. State of Haryana and Union of India vs. Hanuman Industries, which emphasize the need for a cogent and convincing explanation for delays.

Conclusion:
The High Court upheld the Tribunal's decision, finding no reason to interfere with the Tribunal's discretion. The Court emphasized that the petitioner's plea of unawareness was not substantiated, and the delay was not satisfactorily explained. The petition was dismissed, and the notice was discharged. The Court reiterated that condonation of delay requires a proper and convincing explanation, which was lacking in this case.

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