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TMI Blog2015 (3) TMI 1045X X X X Extracts X X X X X X X X Extracts X X X X ..... at against the penalty order dated 3rd January 2011 by the Assessing Authority, the revisionist herein, filed an appeal before the Additional Commissioner Grade II (Appeal)-5 Commercial Tax, Lucknow, which was allowed by order dated 5th May 2011. The Revenue took the matter in further appeal before the Tribunal. The appeal was filed on 23rd November 2011 along with the application for condonation of delay. It is stated in the application that the order of the appellate authority was received in the office of State representative on 13th July 2011 and, thus, after excluding the period of 90 days prescribed for filing appeal, there is only a delay of 43 days. In the application for condonation of delay, it is stated that the proposal for fili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nning from the said date. However, according to the revenue, the judgment was received in the office of the State representative on 13th July 2011 and, thus, the limitation would start running from such date. However, even assuming that the copy of the order of the Appellate Authority was received by the Assessing Authority on 8th June 2011, I find that in the application for condonation of delay, it is specifically mentioned that the proposal for filing the second appeal was received in the office of the State representative on 31st October 2011. This is on account of concerned clerk being on medical leave. Consequently, the period anterior to the date of receipt of the proposal for filing the appeal was not of much relevance. The main qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rightly said that those who bear responsibility of Government must have 'a little play at the joints'. Due recognition of these limitations on Governmental functioning-of course, within a reasonable limits-is necessary if the judicial approach is not 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." Further, it has been held by the Apex Court in the case of N. Balakrishnan Versus M. Krishnamurthy, (1998)7 SCC 123 that once the Court deciding the application condones the delay, Superior Court should normally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and satisfactorily explained, the Court can not condone the delay on sympathetic grounds alone. However, in the facts of the instant case, the law laid down by the Apex Court in the said judgment is not attracted. It is noticeable that revision under section 58 lies to this Court in special cases involving question of law. The order under challenge should be an order made under sub-section (7) or sub-section (8) of section 57 other than an order under sub-section (4) of that section summarily disposing the appeal. Sub-section (7) and (8) of section 58 are as under: - "(7) The Tribunal may at any stage, after giving the appellant a reasonable opportunity of being heard, dismiss the appeal. (8) The Tribunal may, if it has not already dism ..... X X X X Extracts X X X X X X X X Extracts X X X X
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