9911796707
TMI Blog2016 (7) TMI 993X X X X Extracts X X X X X X X X Extracts X X X X ..... nd also to the fact that the Special Leave Petition was preferred in the Hon'ble Supreme Court of India against the order of the Tribunal and hence there was delay, we are not at all convinced by the same. It is pertinent to note that the impugned decision of the Tribunal is dated 19th June 2009 and the Special Leave Petition was disposed of on 7th February 2011 itself. The Appeals are, however, preferred on 3rd February 2016 along with these Notices of Motion. Thus, even if the period consumed in prosecuting Special Leave Petition filed in the Supreme Court of India, is excluded from consideration, there is a delay of about five years. Such a delay can hardly be explained by attributing the same merely to the functioning of the Government and internal correspondence. In this respect also, it is pertinent to note that the Government has given the sanction to file Writ Petition on 13th December 2011 itself. The Draft Appeal received approval thereafter from the concerned Department on 16th December 2015. No explanation at all is offered for this delay of four years and the subsequent delay of again about two months in preferring this Appeal with Notice of Motion. Such a delay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appeal . 4. Learned counsel for the Respondents herein have strongly resisted these Notices of Motion on two counts; firstly, by challenging maintainability of the Notices of Motion on the ground that Section 5 of the Limitation Act, 1963, is not applicable to the proceedings under the Maharashtra Value Added Tax Act, 2002. To advance this submission, the reliance is placed on the Judgment of this Court in Additional Commissioner of Sales Tax, VAT-III, Mumbai Vs. Jonson and Jonson Ltd. Anr. (2015) 79 VST 478 (Bom). 5. The second ground, on which the Notices of Motion for condonation of delay are opposed, is the failure of the Applicant-Appellant to make out sufficient cause for condonation of such long duration of about two years in the first two Notices of Motion and more than six to seven years in preferring the third Notice of Motion. It is submitted that absolutely no satisfactory, much less, cogent or reasonable grounds are made out for condonation of delay in first two Notices of Motion, except for making a bald and general statement that the delay is on account of various factors and in the third Notice of Motion, attributing the same to the alleged inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order appealed against is received by the party. 10. Sub-section (9) of Section 27 of the said Act lays down that, save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908, relating to Appeals to the High Court, shall, as far as may be, apply in the case of Appeals under this Section. 11. Section 80 of the MVAT Act provides that, in computing the period of limitation laid down under Sections 25, 26 and 27, the provisions of Sections 4 and 12 of the Limitation Act, 1963, shall, so far as may be, apply. 12. Section 81 is of relevance, which clearly lays down the extension of period of limitation in certain cases. Sub-clause (1) of Section 81 reads as follows :- An appellate authority may admit an appeal under Section 26 after the period of limitation laid down in the said section, if the appellant satisfies the appellate authority that he had sufficient cause for not preferring the appeal within such period. 13. Thus, the provisions of this Section are clear to the effect that the Appellate Authority under Section 26 of the Act, namely, the Tribunal, is having the power of extending the period of limitation, if th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lear that these observations are made in the context of and pertaining to the 'Reference', which the Tribunal has to make within a particular time period and Tribunal, not being a court, had no authority or powers to extend such period of limitation. In consequence, the High Court was also held to be not having such power to entertain the Reference beyond the period of limitation, prescribed by Section 61 of the Bombay Sales Tax Act, 1959. 18. As against it, in the instant case, we are concerned with the Appeal and not the Reference . As stated above, Section 81 of the MVAT Act confers powers even on the Appellate Authority like the Tribunal, which is not a Court, to extend the period of limitation, if sufficient cause is made out. Hence, needless to state that the High Court cannot be considered as bereft of such powers. Therefore, so far as the question of maintainability of these applications / Notices of Motion for condonation of delay are concerned, we have to hold that they are very much maintainable. 19. However, the mere fact that the Notices of Motion are maintainable, does not mean that they have to be allowed. After all, this Court also has t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the community and what ultimately suffers is public interest, necessitating adoption of pragmatic approach to do substantive justice. However, in case of gross delay and inaction, it becomes difficult to put a State on high pedestal, so as to be immune to the consequences of the inaction. No separate standards to determine the cause laid by the State vis-a-vis private litigant could be laid to prove sufficient cause. Merely because applicant is a State, delay cannot be condoned without a proper explanation as Section 5 of the Limitation Act is equally applicable to the State as well. 25. In the case of Office of the Chief Post Master General Ors. Vs. Living Media India Ltd. Anr. 2012 AIR SCW 1812, the Apex Court, after taking review of its earlier decisions, was constrained to observe that, 12. .............................................. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us. Though we are conscious of the fat that in a matter of condonation of delay when there was no gross negligence or delibe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their case within the four corners of 'sufficient cause', as contemplated under Section 5 of the Limitation Act. 28. Even as regards the third Notice of Motion, though the details of the various internal correspondence are given and the cause is attributed to the same and also to the fact that the Special Leave Petition was preferred in the Hon'ble Supreme Court of India against the order of the Tribunal and hence there was delay, we are not at all convinced by the same. It is pertinent to note that the impugned decision of the Tribunal is dated 19th June 2009 and the Special Leave Petition was disposed of on 7th February 2011 itself. The Appeals are, however, preferred on 3rd February 2016 along with these Notices of Motion. Thus, even if the period consumed in prosecuting Special Leave Petition filed in the Supreme Court of India, is excluded from consideration, there is a delay of about five years. Such a delay can hardly be explained by attributing the same merely to the functioning of the Government and internal correspondence. 29. In this respect also, it is pertinent to note that the Government has given the sanction to file Writ Petition on 13th December 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
