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TMI Blog1996 (8) TMI 489X X X X Extracts X X X X X X X X Extracts X X X X ..... w application filed by the assessee was also rejected on February 20, 1993 by the same authority. On February 27, 1993 a second application for review was filed before the Divisional Commissioner, Allahabad, which was also rejected on March 25, 1995 by the Divisional Level Committee on the ground that it was not maintainable. The two orders aforesaid dated February 20, 1993 and March 25, 1995 by which the review applications were rejected, were thereafter challenged by the assessee before this Court in Writ Petition No. 611 of 1995. On April 26, 1995 a Division Bench of this Court disposed of the writ petition with certain observations to which reference shall be made at its appropriate place. Finally, on June 26, 1995 the assessee preferred an appeal before the Trade Tax Tribunal against the order dated February 20, 1993 together with an application under section 5 of the Limitation Act, seeking condonation of delay in filing the appeal. As stated earlier, the Trade Tax Tribunal refused to condone the delay and rejected the application for condonation of delay in filing the appeal. Consequently, the appeal itself was dismissed as barred by limitation. Hence, this revision. 3.. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tsoever, for the delay from June 23, 1993 to June 27, 1993." 6.. Before proceeding further it will be useful to refer to the provisions of the Act under which the appeal was filed. Sub-section (2) of section 10 of the Act provides for an appeal by any person aggrieved, inter alia, against an order refusing to grant an eligibility certificate, within a period of 90 days from the date of service of copy of such order, decision or direction. Clause (c) of sub-section (9) of section 10 directs amongst other things that an appeal against an order granting or refusing to grant an eligibility certificate shall be filed before the President of the Tribunal and shall be heard and disposed of by a Bench of three members. Sub-section (3) of section 10 says that section 5 of the Limitation Act, 1963 shall apply to appeal or other applications under that section. Subsections (4) and (5) contemplates the disposal of an appeal before the Trade Tax Tribunal. 7.. Now section 5 of the Limitation Act, inter alia, provides that an appeal or application may be admitted after the prescribed period if the appellant or applicant satisfied the court that he had sufficient cause for not preferring the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were to be taken through the resolution of Board of Directors but no agenda or resolution of the Board of Directors was placed on record accepting the legal advice for filing the second review application. 9.. It is relevant to mention that before section 10 of the Act was amended by section 24 of the U.P. Act No. 31 of 1995 which was enforced with effect from May 14, 1994, there was no provision for appeal under the Act before any forum against an order refusing to grant the eligibility certificate under section 4-A of the Act. The first review application was rejected on February 20, 1993 and at the material time no appeal lay before the Trade Tax Tribunal against that order. This question was also canvassed before the Tribunal but the plea was rejected observing as under: "It may further be added that on February 20, 1993 there was no right of appeal against order under section 4-A of the Act to this Tribunal and the appellant could have preferred the writ petition before the honourable High Court. It was not done. On the other hand, the order dated March 25, 1995 was challenged in the writ petition." 10.. The Tribunal was factually incorrect when it proceeded on the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he orders which were passed on the review applications, were challenged in the writ petition. But the writ court relegated the assessee to the appellate forum in so far the order dated February 23, 1993 was concerned. In these circumstances, there seems little justification when the Tribunal refused to condone the delay pertaining to the first sub-period. 13.. The view expressed by the Tribunal that no legal practitioner could have advised for filing of a second review application is also not well-founded. The Divisional Level Committee for its view had relied upon two decisions of this Court, which it appears, are unreported decisions. The learned counsel for the assessee explained that the constitution of the Divisional Level Committee apart from the officers of the Sales Tax Department also had as its members amongst others, the Joint Director of Industries and General Manager of District Industries Centre. It was pointed out that the second application for review was filed before the Divisional Commissioner under some mistaken notion to which the Tribunal did not advert in its order and, in any case, that application was decided by the Divisional Level Committee and not by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xercise the judicial discretion shall be whether the appellant acted with reasonable diligence in prosecuting the cause. Unless want of bona fide and gross negligence is proved, which may deprive the protection of section 5, the application should not be thrown out or any delay cannot be refused to be condoned. In the context of the Limitation Act, the Supreme Court in Collector, Land Acquisition v. Mst. Katiji [1987] 167 ITR 471 has observed that expression "sufficient cause" is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose of the existence of the institution of courts. It was held that section 5 was enacted in order to enable the court to do substantial justice to the parties by disposing of matters on merits. It was held as under: "..........It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that: 1.. Ordinarily, a litigant does not stand to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue, would have been rebutted by the other side. ...................... Here also the court below had before it a duly sworn affidavit of the pairokar of the plaintiff in support of his application and there was no counter-affidavit in traverse of the allegations contained in that affidavit. Under the circumstances it was not open to the court to disbelieve the version of the plaintiff that he had brought his witnesses to the court..............." 18.. The Tribunal in my opinion, erred in disbelieving the assessee and rejecting the affidavit which had not been controverted. 19.. The third sub-period between May 17, 1995 to June 23, 1995 was consumed during which the certified copy of the High Court in writ petition was delivered to the assessee. The fourth period of four days between June 23, 1995 to June 27, 1995 was spent in preparation and filing of the appeal before the Trade Tax Tribunal. The time spent in those period was also not condoned by the Tribunal on the reasoning that it was not necessary to obtain a certified copy of the order for the purposes of filing the appeal. In my opinion, the Tribunal has again not approached the matter from its correct perspective. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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