9911796707
TMI Blog2014 (7) TMI 703X X X X Extracts X X X X X X X X Extracts X X X X ..... s of State of Haryana v. Chandra Mani and Ors. (1996 (1) TMI 378 - SUPREME COURT OF INDIA); and Special Tehsildar, Land Acquisition, Kerala v. K.V. Ayisumma (1996 (7) TMI 551 - SUPREME COURT) - Delay condoned. - CIVIL APPLICATION NO. 448 of 2013 In STAMP NUMBER NO. 2037 of 2013 - - - Dated:- 21-3-2014 - MR. AKIL KURESHI AND MS SONIA GOKANI, JJ. ORAL ORDER (PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. This civil application is preferred seeking condonation of delay of 924 days caused in filing the tax appeal. Tax Appeal is preferred challenging the order dated 21.10.2010 in Second Appeal No.510/2009 passed by the Gujarat Value Added Tax Tribunal ( the Tribunal for short). 2. It is averred in the application by the applicant State that substantial question of law is involved and, therefore, the Court needs to consider the request for condoning the delay which essentially was on account of Government s administrative mechanism, as the file would be travelling from one department to another. It is also further averred that the right of the parties may not be disturbed and there was no intention on part of the State to resort to any dilatory tactics. However, consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal holds that the transaction is not the transfer of right to use the produce with which the respondent deals with and once this transactions are held not taxable under the Gujarat VAT Act, the State would be permanently debarred from the collecting tax from the respondent. Thus this being the order of determination section 80 of the Act, it would have far reaching effect and, therefore, we are not in agreement with the submissions of learned advocate Mr.Kaji that this being only the determinative order, there is no loss of the exchequer. On the contrary, this would have a permanent effect on the collection of tax and therefore, considering the application for condonation of delay, the Court cannot be oblivious of the question of merit involved and following the decision of the Apex Court in the case of CIT vs. West Bengal Infrastructure Development Finance Corporation Limited (supra), the examination of the issue shall need to be on merit rather than rejecting the appeal on delay, when otherwise the permanent damage stares at the face of the State machinery. 12. This Court in the case of State of Gujarat vs. Welspun Gujarat Stahl Rohren Ltd. (supra) allowed the condon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court to consider imposing costs but certainly it should examine the cases on the merits and should not dispose of cases merely on the ground of delay, particularly when huge stakes are involved. In case of State of Nagaland V. Lipok AO Ors., reported in (2005) 3 Supreme Court Cases 752, it was observed as under : 13. Experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file pushing, and passing on the buck ethos, delay on its part is less difficult to understand though more difficult to approve. The State which represents collective cause of the community, does not deserve a litigant nongrata status. The courts, therefore, have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression of sufficient cause. Merit is preferred to scuttle a decision on merits in turning down the case on technicalities of delay in presenting the appeal. Delay as accordingly condoned, the order was set aside and the matter was remitted to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibility of Government must have a little play at the joints . Due recognition of these limitations on governmental functioning of course, within reasonable limits is necessary if the judicial approach is not to be rendered unrealistic. It would, perhaps, be unfair and unrealistic to put Government and private parties on the same footing in all respects in such matters. Implicit in the very nature of Governmental functioning is procedural delay incidental to the decision making process. The delay of over one year was accordingly condoned. 15. It is axiomatic that decisions are taken by officers/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay intentional or otherwise is a routine. Considerable delay of procedural redtape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If 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 pra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... substantially large. Considering these aspects of the matter, delay is condoned by awarding cost of ₹ 15,000/, which shall be paid to the respondent within four weeks from today. 13. In wake of the discussion held hereinabove, explanation rendered in the form of administrative clearance and the consumption of time at the office of the Government Pleader for preferring appeal as also considering the substantial question of law raised in the present Tax Appeal, we are of the opinion that the issue involved would have far reaching effect as the determination order under section 80 of Gujarat VAT Act attains finality and thus it will be a permanent loss to the exchequer, if the order is not permitted to be challenged by way of Tax Appeal and it is not a question of any conjuncture or presumption to hold that large amount of the revenue is at stake. Resultantly, this Civil Application requires to be considered and is allowed. Considering the cumulative aspects discussed hereinabove, while condoning the delay of 1710 days, the applicant is directed to pay cost of ₹ 25,000/to the respondent within the period of 4 weeks from the date of receipt of this order. Rule is mad ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
