9911796707
TMI Blog2023 (11) TMI 945X X X X Extracts X X X X X X X X Extracts X X X X ..... t the delay in filing the appeal was on account of extreme laxity on the part of the applicant/assessee. There is also no serious challenge to the contention of the applicant/assessee that its Director who had been addressing arguments in person had resigned and got settled abroad while the remaining Directors were not conversant about the proceedings before the Tribunal till their auditors pointed out. There is nothing on record to even feebly suggest any lack of good faith on the part of the Directors of the applicant/assessee in their having filed review application before the Tribunal. A litigant cannot be expected to be conversant with the complex technicalities of law pertaining to the exercise of review and appeal, in which many a time even the experienced lawyers fall in error. We cannot ignore the admitted situation that immediately upon coming to know about dismissal of appeal by the Tribunal, the applicant applied for certified copies of the impugned order and promptly filed review application. Similarly, on coming to know about dismissal of the review application also the applicant promptly applied for certified copies and soon thereafter filed the present appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were heard by the Tribunal but no further date was fixed; that on 26.05.2019 on inquiry from Registry of the Tribunal qua status of the case, the applicant was informed on 19.06.2019 over telephone from Registry that ITA No. 5068/del/2013 was decided in favour of the applicant but ITA No. 1725/del/2012 was decided against the applicant vide order dated 21.06.2016; that promptly on 20.06.2019, the applicant applied for certified copy of the order dated 21.06.2016 and received the same on 02.07.2019; that on 09.10.2019, the appellant filed before the Tribunal an application seeking review of order dated 21.06.2016, specifically pleading that the applicant had no notice or information about the outcome of the said appeal and also explaining the events mentioned hereinbefore; that accepting the said explanation, the Tribunal admitted the review application to be heard on merits; that on 10.10.2022, the review application was disposed of by the Tribunal but knowledge of that order was acquired by the appellant only on 02.05.2023, so immediately on 04.05.2023 the appellant applied for certified copy of the order dated 10.10.2022; and that on 21.07.2023, the appellant filed the appeal th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Tribunal and even after obtaining the certified copy of the impugned order, the applicant opted to seek review of the impugned order instead of promptly filing the appeal. The applicant/assessee being guilty of utmost laxity does not deserve condonation of delay in filing the appeal, as per respondents/revenue. 4. The applicant/assessee filed rejoinder to reaffirm its pleadings of the application. 5. During arguments on the application, learned counsel for both sides reiterated the relevant circumstances as extracted above. 6. In nutshell, the delay in filing the appeal is sought to be explained by the appellant taking resort to Sections 5 and 12 of the Limitation Act. The legal position pertaining to these provisions is well settled across plethora of judicial pronouncements. It is trite that admission of any appeal beyond the prescribed period is not a matter of right of the appellant but a matter of discretion of the court, which discretion like any other has to be exercised judiciously by examining as to whether the court stands satisfied that the appellant had sufficient cause for not preferring the appeal within prescribed period. In this examination, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to challenge the order dismissing the application under Order IX Rule 13 CPC but withdrew the said appeal on 11.06.2013; and that thereafter they filed an appeal on 12.06.2013 challenging the ex-parte partition decree along with an application seeking condonation of delay of 04 years 10 months and 08 days. After traversing through the legal position pertaining to Section 5 Limitation Act, the Supreme Court held that the time spent in pursuing the application under Order IX Rule 13 CPC is to be taken as sufficient cause for condoning delay in filing the appeal. 6.3 Most recently in the case of Sheo Raj Singh (deceased) through LRs vs Union of India, 2023 SCC OnLine SC 1278 [Civil Appeal No. 5867 of 2015 decided on 09.10.2023], the Supreme Court again traversed through a plethora of judicial pronouncements and held thus: 29. Considering the aforementioned decisions, there cannot be any quarrel that this Court has stepped in to ensure that substantive rights of private parties and the State are not defeated at the threshold simply due to technical considerations of delay. However, these decisions notwithstanding, we reiterate that condonation of delay being a discretionary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extreme laxity on the part of the applicant/assessee. 9. Significantly, the respondents/revenue did not make even a whisper in their reply or even arguments that copies of the impugned order and order of dismissal of the review application or even intimation of those dismissals were ever conveyed by their officials on their own to the applicant/assessee. Since after conclusion of final arguments (advanced on behalf of the applicant/assessee by one if its Directors in person) no date for pronouncement of order was fixed, it was the bounden duty of the Tribunal to serve or at least dispatch a copy of the impugned order as well as order of dismissal of review application to the applicant/assessee. There is also no serious challenge to the contention of the applicant/assessee that its Director who had been addressing arguments in person had resigned and got settled abroad while the remaining Directors were not conversant about the proceedings before the Tribunal till their auditors pointed out. 10. There is nothing on record to even feebly suggest any lack of good faith on the part of the Directors of the applicant/assessee in their having filed review application before the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
