2017 (9) TMI 1171 - HC - VAT and Sales Tax

Condonation of delay in filing appeal - delay of 511 days - case of appellant is that there was no lack of bonafide on part of the applicant and the delay was caused due to the reasons beyond the control of the authorities - Revenue took a view that he assessee had filed a writ petition claiming refund arising out of the judgment of the Tribunal, since for a long time after the judgment was delivered, the authorities were not releasing the refund, the decision of the authorities to challenge the judgment of the Tribunal was clearly an afterthought - also the case of Revenue was that the delay is not properly explained. Held that - after the judgment was delivered by the Tribunal and a copy thereof was available with the department, the procedure was undertaken to challenge the same before the High Court. However, the appeal could not be presented because of various reasons cited in the delay condonation application and further amplified in the additional affidavit. It is also pointed out that the papers were missing in the office of the Government Pleader for some time which also contributed partly to the delay. Since this explanation is forthcoming on oath and when the revenue effect involved in the Tax Appeals is substantial, we would accept the explanation and condone the delay rather than rejecting the Tax Appeals without entering into the merits, of course by awarding cost. A responsible officer of the level of Deputy Commissioner has stated on oath twice that upon receipt of the copy of the judgment of the Tribunal, proposal was moved for challenging the same and once the decision to challenge the same was taken, papers were supplied to the Government pleader for filing appeal. We do not have reason to doubt or dispute such averments made on oath. Merely because, may be due to miscommunication between the departments, the Court in the writ petition was not apprised about such pending proposal, would not mean that there was no such proposal pending. In the case of STATE OF GUJARAT Versus WELSPUN GUJARAT STAHL ROHREN LTD. 2013 (3) TMI 626 - GUJARAT HIGH COURT in somewhat similar background, the Court had condoned such delay in the process holding that adoption of strict standard of proof sometimes fail to protract public justice, and it would result in public mischief by skilful management of delay in the process of filing an appeal. Dealy condoned - appeal allowed - decided in favor of appellant.

Issues Involved:
1. Condonation of delay in filing Tax Appeals.
2. Explanation and justification for the delay.
3. Opposition to the condonation of delay.
4. Judicial precedents and principles for condoning delay.

Issue-wise Detailed Analysis:

1. Condonation of Delay in Filing Tax Appeals:
The State Government filed civil applications seeking condonation of a 511-day delay in filing Tax Appeals. The delay resulted from the administrative procedures required before filing the appeal, including obtaining approvals from various departments and the preparation of necessary documents by the Government Pleader's office.

2. Explanation and Justification for the Delay:
The applicant provided a detailed timeline explaining the delay:
- The Tribunal's judgment was received on 27.08.2015.
- Opinions from several officers were sought, and approvals from the Legal and Finance Departments were obtained by 22.12.2015.
- Necessary documents were supplied to the Government Pleader's office on 29.12.2015.
- Additional documents were requested and supplied between January and April 2016.
- The papers were misplaced in the Government Pleader’s office, causing further delay until December 2016.
- The Tax Appeal was eventually prepared and filed on 19.04.2017.

The applicant argued that the delay was due to the government’s administrative mechanism and not due to any lack of bona fide intentions.

3. Opposition to the Condonation of Delay:
The respondent opposed the application on two grounds:
- The authorities did not indicate any intention to challenge the Tribunal’s judgment during the writ petition for a refund filed by the assessee, suggesting the decision to appeal was an afterthought.
- The delay was not properly explained, and mere administrative delay or missing papers were insufficient reasons for condonation. The respondent cited the Supreme Court's decision in Basawaraj and Ors. v. The Spl. Land Acquisition Officer and the Bombay High Court's decision in support of their contention.

4. Judicial Precedents and Principles for Condoning Delay:
The court reviewed the explanation provided by the applicant and recognized that while the delay was substantial, it should be viewed in light of the specific facts and explanations given. The court noted that the delay was partly due to missing papers in the Government Pleader’s office and accepted the explanation provided on oath.

The court referenced several judicial precedents that emphasized a pragmatic approach to condoning delays, particularly when substantial public interest and revenue were involved. Notably:
- The Supreme Court in Commissioner of Income Tax v. West Bengal Infrastructure Development Finance Corporation Ltd. emphasized deciding cases on merits when significant tax amounts were involved.
- In State of Nagaland v. Lipok AO & Ors., the Supreme Court highlighted the need for a pragmatic approach considering the inherent delays in government functioning.

The court concluded that the explanation for the delay was reasonable and that rejecting the Tax Appeals without considering their merits would be unjust. Therefore, the delay was condoned, with the applicant ordered to pay costs of ?25,000 in each appeal to the respondents.

Conclusion:
The civil applications for condonation of delay were allowed, and the delay in filing the Tax Appeals was condoned, subject to the payment of costs. The court emphasized the importance of considering the merits of the case and the substantial revenue involved, rather than dismissing the appeals solely on technical grounds of delay.

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