2017 (12) TMI 884 - HC - VAT and Sales Tax

Condonation of delay of 1541 days in representation - reasons given for delay is that the returned papers were mixed up - Held that - the Hon ble Supreme Court, in Esha Bhattacharjee v. Raghunathpur Nafar Academy, 2015 (1) TMI 1053 - SUPREME COURT , has broadly culled out the principles of law to be considered in the matter of condonation and held that The persons chosen to act on behalf of the Managing Committee cannot take recourse to fancy and rise like a phoenix and move the court. Neither leisure nor pleasure has any room while one moves an application seeking condonation of delay of almost seven years on the ground of lack of knowledge or failure of justice. Plea of lack of knowledge in the present case really lacks bona fide. Following the guiding principles of Law, in the matter of condonation of delay, we find absolutely no sufficient cause, to condone the delay. That apart, it is also informed that the appeal has been filed beyond the statutory period, as provided for in the proviso to Section 38 of the then Tamilnadu General Sales Tax Act, 1959. Reference made to decision in the case of Commissioner of Customs & Central Excise v. Hongo India (P) Ltd., 2009 (3) TMI 31 - SUPREME COURT , where the Hon ble Apex Court considered a question, as to whether, High Court has power to condone the delay, in presentation of a reference application, under unamended Section 35H(1) of the Central Excise Act, 1944, beyond the prescribed period, by applying Section 5 of the Limitation Act, 1963 and it was held that time limit prescribed u/s 35H(1) is absolute and unextendable u/s 5 Limitation Act. Since court has to respect the legislative intent, limitation cannot be extended u/s 5 of Limitation Act Delay cannot be condoned - appeal dismissed.

Issues Involved:

1. Condonation of delay in representation of returned papers.
2. Application of legal principles from Esha Bhattacharjee v. Raghunathpur Nafar Academy.
3. Applicability of statutory period for filing appeals under the Tamil Nadu General Sales Tax Act, 1959.
4. Jurisdiction of the High Court under Article 226 of the Constitution of India.
5. Precedents regarding condonation of delay under various statutes.

Detailed Analysis:

1. Condonation of delay in representation of returned papers:

The primary issue was the condonation of a delay of 1541 days in representing returned papers. The petitioner argued that the delay was due to the papers being mixed up and later traced by a new Special Government Pleader (Taxes). The defects were rectified and represented after this significant delay.

2. Application of legal principles from Esha Bhattacharjee v. Raghunathpur Nafar Academy:

The court referenced the Supreme Court's decision in Esha Bhattacharjee v. Raghunathpur Nafar Academy, which outlines principles for condonation of delay. These principles include a liberal, pragmatic, and justice-oriented approach, understanding "sufficient cause" in its proper spirit, and recognizing that substantial justice should not be overshadowed by technical considerations. The court emphasized that gross negligence and lack of bona fides are significant factors, and the explanation for the delay must be reasonable and not concocted.

3. Applicability of statutory period for filing appeals under the Tamil Nadu General Sales Tax Act, 1959:

The court noted that the appeal was filed beyond the statutory period as provided under Section 38 of the Tamil Nadu General Sales Tax Act, 1959. It cited the case of Indian Coffee Worker’s Co-op. Society Ltd. v. Commissioner of Commercial Taxes, which held that appeals must be filed within 30 days, and the appellate authority may condone a further delay of 30 days if sufficient cause is shown. Beyond this period, the appellate authority has no power to condone the delay.

4. Jurisdiction of the High Court under Article 226 of the Constitution of India:

The court discussed its jurisdiction under Article 226, emphasizing that it cannot extend the period of limitation prescribed by statute. The High Court cannot direct the appellate authority to consider an appeal on merits if it is filed beyond the statutory period, as this would effectively rewrite the provisions of the Act.

5. Precedents regarding condonation of delay under various statutes:

The judgment referenced several precedents, including:
- Mohd. Ashfaq v. State Transport Appellate Tribunal, U.P.: The Supreme Court held that the Regional Transport Authority could not condone delays beyond a specified period, indicating express exclusion of Section 5 of the Limitation Act.
- K. Ganesh v. State of Tamil Nadu: The court ruled that the period prescribed by statute is clear and Section 5 of the Limitation Act is expressly excluded.
- Union of India v. Popular Construction Co.: The Supreme Court held that the time limit prescribed under the Arbitration and Conciliation Act is absolute and unextendable by the court.
- Singh Enterprises v. Commissioner of Central Excise: The Supreme Court ruled that statutory authorities are not vested with the power to condone delays beyond the permissible period provided under the statute.
- Commissioner of Customs & Central Excise v. Hongo India (P) Ltd.: The Supreme Court held that the High Court has no power to condone delays beyond the period prescribed by the Central Excise Act.

Conclusion:

Following the guiding principles of law and the precedents cited, the court found no sufficient cause to condone the delay of 1541 days. The appeal was filed beyond the statutory period, and the court emphasized that it could not extend the period of limitation under Article 226 of the Constitution of India. Consequently, the petition for condonation of delay was dismissed, and the connected Tax Case (Revision) was rejected.

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