9911796707
TMI Blog2008 (8) TMI 282X X X X Extracts X X X X X X X X Extracts X X X X ..... 0, 1106, 970, 1236, 1235, 1256, 1249, 1761, 1760, 1784, 394, 532, 369, 368, 1672, 541, 1930, 1945, 1941, 1625, 1463, 1465, 1718, 1719, 1720, 533, 534, 1673, 1672, 1255, 1251, 539, 540, 614, 1931, 1943,1944, 1942 of 2008. Suresh Kumar for the appellant in Notice of Motion Nos. 1897, 1898, 2246, 2247, 2094, 2291, 1896, 1960, 1963, 2044, 2046, 2049, 2093, 2095, 2248, 2249, 2289, 2290, 2292 and 2294 of 2008. Vimal Gupta for the appellant in Notice of Motion Nos. 2005, 2281, 2282 and 2358 of 2008. P. A. Vyas for the appellant in Notice of Motion Nos. 2155, 2185, 2304, 2305, 2330, 2058, 2073, 2074, 2076, 2059 and 2060 of 2008. K. R. Chaudhari for the appellant in Notice of Motion Nos. 2338, 2339, 2335, 2336, 2337 and 2340 of 2008. J. D. Mistry with B. Damodar, instructed by Kanga and Co., for the respondent in Notice of Motion No. 1897 of 2008. Ms. U. I. Dalal for the respondent in Notice of Motion Nos. 2155 of 2008. J. D. Mistry with P. C. Tripathi and Raj Darak for the respondent in Notice of Motion No. 2281 of 2008. Ms. Asifa Khan for the respondent in Notice of Motion Nos. 2304, 2305 and 2330 of 2008. Pritesh Rajgor, instructed by PDS Legal, for the respondent in Notice of M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst the applicant. It really would not make much difference whether the applicant before the court is a Government Department or is a private individual. Of course, as per the settled principles, the courts are inclined to show greater indulgence to the departments of the Government because of inter and intra departmental steps to be taken before initiation of a legal proceedings by the Department, but this indulgence has its own limitations and cannot be extended without any reasonable cause and that too beyond the permissible time. The period of limitation has to be construed somewhat strictly and advantages that accrue to the non-applicant would normally not be taken away in a routine manner or for no plausible cause or reason. 3. As we have noticed that in the above notices of motion filed on behalf of the Commissioner(s) of Income-tax, the delay in filing the appeal varies from 18 days (Notice of Motion No. 2330 of 2008) to 1474 days (Notice of Motion No. 2093 of 2008). While in the case of the assessee in Notice of Motion No. 2281 of 2008, there is delay of 198 days in filing the appeal. 4. Firstly, we will proceed to discuss the cause shown in the affidavits in support of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 26-6-2008 25-2-2008 Reasons for delay Appellant's office was following the matter for filing of appeal on due date. However, due to reasons beyond control of the appellant's office, which includes administrative difficulties. Appellant's office was following the matter for filing of appeal on due date. However, due to reasons beyond control of the appellant's office, which includes administrative difficulties. Appellant's office was following the matter for filing of appeal on due date. However, due to reasons beyond control of the appellant's office. Shortage of stamp papers in office. 5. From the above averments, it is clear that the reasons for condonation of delay are more or less similar. However, the period of delay varies considerably. It was expected of the applicants, Commissioner(s) of Income-tax to explain properly and with better particulars where delay is more than 200 days. This we are not treating as a cut off mark or magic figure but on reasonable application of administrative principles and applying the commonly accepted norms of office functioning. Heavy burden lies upon the applicant to show special circumstances constituting a sufficient cause within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been explained. Primarily it had occurred when the brief was sent to the panel counsel for preparation of draft of appeal which took considerable time right from May 21, 2008, to June 5, 2008, which resulted in delay of 18 days. 8. In Notice of Motion No. 2059 of 2008, there is a delay of 1223 days, i.e., nearly more than three years in filing the appeal. As already noticed, in paragraph No. 2 of the affidavit in support of the notice of motion, it has been stated that the order of the Tribunal dated May 20, 2004 (wrongly mentioned as October 20, 2004, in the affidavit-in-support of notice of motion) was received in the office of the Director of Income-tax on June 23, 2004. Preparation of the report is stated to have taken some time and was forwarded to the Director of Income-tax (International Taxation) on September 21, 2004, who granted his approval on October 20, 2004. The same was sent for drafting to the Central Government advocate on October 27, 2004. Draft was received on November 30, 2004, and the appeal has been filed in this court on February 25, 2008. There is not even an iota of explanation as to what steps were taken by any Department right from November 30, 2004, whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en away in most casual manner. Another aspect of the case is that the Revenue and/or even the assessees are expected to act with care and expeditiousness and not to let things lie unprocessed for months together. Of course, the limitation for the purpose of filing of appeal under section 260A of the Act commences from the date the copy of the order is received by the parties in terms of section 260A(27)(a) of the Act. However, the knowledge of the proceedings and the judgment and its contents is known to the parties the moment the judgment is pronounced. The Tribunal is supposed to list and pronounce the judgments on a date fixed for pronouncement thus, the parties to the proceedings are well aware of the pronouncement of the judgment as well as the contents thereof and whether the appeal of the assessee/Department has been accepted or rejected partly or completely accepted or rejected. 12. The law of limitation is normally to be construed strictly as it has the effect of vesting for one and taking away right from the other. To condone the delays in a mechanical or a routine manner may amount to jeopardizing the legislative intent behind section 5 of the Limitation Act. Statutes o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as held that a limited provision within which steps have been taken for recovery of duties not levied or not paid or short- levied or short-paid or erroneously refunded, is again subject to the rule of strict construction. 15. To law of limitation, the argument of hardship or alleged injustice has to be applied with greater care. The argument "ab inconvenienti" said Lord Moulton, "is one which requires to be used with great caution". (Reference Principles of Statutory Interpretation by Justice G. P. Singh, 11th Edition 2008). 16. The essence of the above enunciated principle thus reflects a simple but effective mandate that a provision must be construed on its plain and simple language. The provision of limitation should be construed strictly but at best its application could be liberalised where actual sufficient cause in its true sense is shown by an applicant who has acted bona fide and with due care and caution. An interpretation or application of the statutory provisions which would frustrate its very object necessarily has to be avoided. 17. We may also refer to the judgment of the other High Courts in the case of Union of India v. C. L. Jain Woollen Mills P. Ltd. [2006] 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for condonation of delay in the present case hardly gives any reason or cause much less a reasonable explanation for condoning the delay. Merely because there was no communication between the client and counsel could hardly be a reason for condoning the delay of 2 years as the order was pronounced on November 5, 1980, in the presence of the counsel and the appeal was filed in the year 1982. At this stage, we may refer to the judgment of the Supreme Court in the case of Ramlal v. Rewa Coal Fields Ltd., AIR 1962 SC 361, 363 wherein the court held as under :- 'In construing section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree holder to treat the decree as binding between the parties. . . and this legal right which has accrued to the decree holder by lapse of time should not be light heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the court to condone delay and admit the appeal. ILR 13 Mad 269, Approved..... It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... table grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the miscellaneous first appeal shall stand dismissed as barred by time. No costs.' In the application for condonation of delay hardly any reason has been stated. All that has been stated is that no authorised person had appeared on behalf of the appellant when the decree was passed on November 5, 1980. Thereafter, application was filed under Order 9, rule 9, Civil Procedure Code and later on another application was filed under Order 47, Rule 1, Civil Procedure Code. Both these applications were dismissed by the trial court on February 16, 1980, as not maintainable and the appellant came to know about the said orders on February 17, 1982, thereafter an appeal was filed in this court on March 3, 1982. Except giving these dates, the application gives no explanation, much less a sufficient cause for justifying the prayer for condonation of delay. The vague averments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easonably explain the delay, may be, by not giving explanation for each day delay but to explain the delay in a composite manner. In the entire application, no reference of any date, officers and the need for sending the file to any particular section has been stated. This was a case simpliciter for recovery of money of Rs. 3,35,000 which had been decreed against the authorities and it was held that they were liable to pay interest. It does not appear to be such a complicated issue for determination by the court which would require the UOI or its officers to take years and years to decide whether the appeal should or should not be filed. Then when it is filed after an year, it is incomplete in all respects for which action there is not even a whisper much less an explanation as to why the appeal was kept back for another one year and even the court fee for the appeal was purchased after the lapse of two years from the date of the judgment. This conduct of the applicants is nothing but a negligent attitude and they are taking it to be for granted that the UOI is entitled to claim condonation of delay de hors its averments in the application. For these reasons, we find no merits in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dverse rigours could be avoided by timely and co-ordinate actions. The authorities are required to have a more practical and pragmatic approach to provide solution to this problem. The inordinate delays occurring from inaction or non-co-operation of the departments, as is demonstrated by the facts of the present cases, needs to be corrected and it will be desirable to fix the responsibility of the erring officer/official..." 19. The aspect of applying the principles of law of limitation with their rigours was also considered by a Bench of the Punjab and Haryana High Court in the case of Sanjeev Babbar v. Dev Papers P. Ltd. [1998] 118 PLR 814, where the court held as under :- ".....The revision petition as originally filed was barred by time as is clear from the aforestated dates. In fact no revision was filed. It was only some papers with the impugned order which were filed without any grounds of revision as required under law. Even the requisite court-fee was not levied. When a petition becomes barred by time, a right accrues to the other party and such a right cannot be taken away by the court merely on an application which lacks bona fides and does not disclose any sufficient ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve fairly applied the principle of public account ability and trust to the action of the Government officers/officials. It is expected of the concerned authorities to formulate their system and working methodology in a way which would endeavour to achieve the object of timely disposal of administrative files as opposed to "I will deal with the matter at leisure and at my convenience". The practice of bureaucratic delay was dealt with by the Supreme Court with a pious hope that curse of Lord Curzon will not haunt the wheels of administration in the case of State of Kerala v. Kumari T. P. Roshana [1979] 1 SCC 572. The court held as under (page 589) "45. We are aware that these various directions and orders call for high pressure activisation. Perhaps, we may emphasise the need for guarding against the slow march of bureaucratic movement embodied in Lord Curzon's lament respecting the administration of his time, a state of affairs wholly opposed to the dynamic fulfilment of the imperatives cast by the Constitution upon the nation and its institutions. Said Lord Curzon in a despatch to the Secretary of State: Your despatch of August 5 arrived. It goes to Foreign Department. Thereupon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c averment in this regard with any dates in the affidavit filed in support of the notice of motion. Secondly, the time barring cases are completed by 31st March or immediately thereafter, while all these cases relate to the period subsequent to March of the respective assessment year. Pre-occupation of an officer or officials can be a reasonable excuse, but for a short period and nothing justifies the inaction for a pretty long period running into months. If such an excuse is to be permitted in law, then the courts would have to completely ignore the law of limitation. Public interest imposes an obligation upon the Department as a whole to act in a channalised manner and to ensure that every appeal which is sought to be preferred by the Department is not rendered barred by time that too by inordinate and unexplained delays. In fact, some of the cases before us, particularly where the delay is more than a year, ex facie reflects negligence and callous attitude of shifting responsibilities. If the file was pending with the lawyer, there is not even an averment that the lawyer who retained the file for few months was contacted or any officer of the Department went to the lawyer to eit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bruary 25, 2008. No reason whatsoever has been given as to what was being done for the intervening period for more than three months. Apart from the standardised proforma giving chronology of dates and events in the affidavit in support of the notices of motion attempting to show sufficient cause for condonation of delay, no event whatsoever during this period has been referred to so as to render the cause sufficient and delay reasonable. These facts clearly show that there was utter negligent and irresponsible attitude on the part of the officers/officials. 24. In all the applications for condonation of delay, similar tables have been given with more or less similar facts but of course the dates are different in different cases. In fact, even dates in some cases are common. In other words, it is a collective excuse shown for condonation of delays, stages in different cases are the same but the period of delay varies from 18, 190 to 1474 days. In the cases where the delay is of 18 or 190 days or even up to a year, some plausible explanation has been rendered which the court may, keeping in view the concept of public interest and public revenue, show indulgence and condone the dela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where the delay is large, they all are stated to be in process only after the expiry of 31st March of the respective year. The question of public revenue cannot be used as an excuse. It in fact adds to the responsibility and liability of the Department. Wherever there is higher public revenue, greater is the responsibility to act with utmost expeditiousness. It cannot justify the conduct that you sleep over and ignore your statutory rights for years and then take up the plea of public revenue. The court can also not completely ignore the interest of the assessee who might have succeeded in the previous proceedings leading to the filing of the appeal. 27. The learned counsel appearing for the assessee in these cases have also relied upon the judgment of the Supreme Court in the case of Union of India v. Tata Yodogawa Ltd. [1988] 38 ELT 739 (SC) to contend that inter-departmental correspondence and processing is not a sufficient cause for condonation of delay as well as in the case of Union of India v. Visveswaraya Iron and Steel Ltd. [1987] 166 ITR 64 (SC) to further contend that without giving detailed circumstances and merely referring to list of dates and stating that it was a G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the burden of justice delivery system. Boni judicis est causes litium dirimere. 31. Where there is unreasonable and unexplained delay on the part of the authorities concerned in instituting the appeals within the period of limitation it is detrimental to the public revenue, it is also opposed to public policy and good governance of the Department. Furthermore, the case where the law is in favour of the Department or where departmental appeal makes out a good case as understood in common parlance, because of inordinate and unexplained delay if it is dismissed as barred by time as courts decline to hear the matters on the merits, it will have adverse consequences. These adverse consequences can certainly be avoided by timely and co-ordinated action. It is expected of the authorities concerned to adopt a more practical and pragmatic approach and handle the judicial matters with utmost efficiency and expeditiousness. It will also be desirable to fix responsibility of the officers while introducing the mandate of public accountability for default in performance of duties. The doctrine of public accountability would require the authorities to act timely and be responsible for their act ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
