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TMI Blog2011 (1) TMI 1276X X X X Extracts X X X X X X X X Extracts X X X X ..... cate Mr. Manish K. Kaji and has filed an affidavit-in-reply, dealing with the averments made in the application on the merits. The respondent has also raised a contention that in the light of the provisions of section 78 of the Gujarat Value Added Tax Act, 2003 (the Act), the High Court has no power to condone the delay caused in filing a tax appeal and as such, the application deserves to be rejected on this ground alone. Ms. Maithili Mehta, learned Assistant Government Pleader, invited the attention of the court to the averments made in the application, to submit that the delay that has been occasioned in filing the tax appeal has been sufficiently explained and as such, the same requires to be condoned in the interest of justice. It was submitted that the time taken in preferring the appeal is because of the procedure that is required to be followed in the administrative hierarchy which requires the proposal for filing the appeal to be scrutinized at various levels and as such, there was no negligence on the part of the respondent in preferring the tax appeal and that the applicant was bona fide pursuing the remedy of appeal. On the other hand, Mr. Manish K. Kaji, learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not enact that the High Court has the power to admit any appeal after the period of limitation and as such, the High Court does not have any power to condone the delay that has been caused in preferring a tax appeal under section 78 of the Act. It was further submitted that even on the merits, the application does not deserve to be entertained inasmuch as the applicant has failed to properly explain the delay of 110 days that had been caused in filing the tax appeal, and as such, even on this count, the application is required to be rejected. Dealing with the contentions as regards applicability of section 5 of the Limitation Act, Ms. Maithili Mehta, learned Assistant Government Pleader invited attention to the provisions of section 78 of the Act, which makes provision for Appeal to High Court . Referring to sub-section (7) thereof, it was submitted that the same provides that in respect of matters not provided in the section, the provisions of the Code of Civil Procedure, 1908 (the Code), which applies to the second appeal to the High Court under section 100 of the Code shall, so far as may be, apply to the second appeal under the section. It was, accordingly, submitted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On a plain reading of section 78 of the Act, it is apparent that subsection (6) thereof provides for preferring an appeal within ninety days from the date of communication of the order of the Tribunal. The language employed in the provision is an appeal under the section may be filed within ninety days. The expression used is may and not shall , hence, prima facie, it appears that the provision is directory rather than mandatory in nature. Sub-section (7) of section 78 of the Act provides that in respect of such matters not provided under the section, the provisions of Code of Civil Procedure, 1908, which applies to the second appeal to High Court under section 100 of the said Code shall, so far as may be, apply to the second appeal under this section. Thus, the said provision provides that the provisions of the Code of Civil Procedure as applicable to second appeals to High Court under section 100 of the Code shall apply to second appeals under section 78 in respect of such matters not provided under the section. Section 100 of the Code provides for second appeals to the High Court, where the High Court is satisfied that the case involves a substantial question of law. The pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he filing of a memorandum of cross-objections under section 73 and the Tribunal may admit an application under section 75 or under section 78 after the period of limitation laid down in the said sections, if the appellant or the applicant satisfies the appellate authority or the Tribunal, as the case may be, that he had sufficient cause for not preferring the appeal or filing a memorandum of cross-objections or making the application, within such period. Thus, section 84 of the Act provides for admitting any appeal or permitting filing of memorandum of cross-objection under section 73 of the Act by the appellate authority and admitting of an application under section 75 or section 78 by the Tribunal after the period of limitation laid down under the said sections, if the appellant or the applicant satisfies the appellate authority or the Tribunal, as the case may be, that he had sufficient cause for not preferring the appeal or filing the memorandum of cross-objections or making application within such period. Thus, section 84 of the Act provides for extension of period of limitation in relation to any appeal or cross-objections under section 73, and applications under sections ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellate authority or the Tribunal are subject to section 84 of the Act. But from the language of section 84, it appears as if the same applies only in respect of appeals to the appellate authority under section 73 of the Act. As noticed above, section 84 specifically provides for admitting an application under section 78 of the Act by the Tribunal after the prescribed period of limitation. Whereas, section 78 of the Act provides for appeal (not application) to the High Court. No power is vested in the Tribunal under section 78 of the Act. Thus, if section 84 of the Act is construed literally, the same results into an absurdity, inasmuch as the words section 78 are rendered meaningless. It appears that though the intention of the Legislature was to make the provisions of section 84 applicable to appeals to the High Court under section 78 of the Act, due to some error on the part of the draftsman, the words the High Court may admit an appeal have been accidentally omitted before the words under section 78 . Since section 78 has in fact been included in section 84 of the Act, unless such an interpretation is adopted, namely, that the Legislature has through inadvertent err ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the court should neither add nor delete words in a statute. However, in exceptional cases this can be done where not doing so would deprive certain existing words in a statute of all meaning, or some part of the statute may become absurd. 53. In the chapter on 'Exceptional Construction in his book on Interpretation of Statutes, Maxwell writes: 'WHERE the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, by altering their collocation, by rejecting them altogether, or by interpolating other words, under the influence, no doubt, of an irresistible conviction that the Legislature could not possibly have intended what its words signify, and that the modifications thus made are mere corrections of careless language and really give the true meaning.' 54. Thus, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression sufficient cause should, therefore, be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of the governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice-oriented process. The court should decide the matters on merits unless the case is hopelessly without merit. . . In G. Ramegowda, Major v. Special Land Acquisition Officer [1988] 2 SCC 142, the Supreme Court held that no general principle saving the party from all mistakes of its counsel could be laid. The expression sufficient cause must receive a liberal construction so as to advance substantial justice and generally delays in preferring the appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of delay. In litigati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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