9911796707
TMI Blog2013 (5) TMI 1070X X X X Extracts X X X X X X X X Extracts X X X X ..... e as a dealer would fall under Entry 35 of Schedule II pertaining to "Machinery including parts and accessories thereof used in the execution of the works contract" or would more appropriately categorised as motor vehicles and fall, therefore, under Entry 87, which is a residuary entry. The consequence of this classification would be that under Entry 35 the goods would invite basic Value Added Tax at 4% as against 12.5% for goods falling under Entry 87. Another significant aspect of the matter is that the impugned decision was rendered by the Tribunal in the context of opponent-assessee's application under Section 80 of the Gujarat Value Added Tax Act, 2003 (hereinafter referred to as 'the Act'). Section 80 of the Act pertains to determination of disputed questions. Sub-section (1) thereof empowers the Commissioner, Special Commissioner, Additional Commissioner or Joint Commissioner to make an order determining the question if any arises otherwise than in proceeding before a Court, or proceedings under Section 33, 34 or 35 of the Act with respect to various categories specified in Clauses (a) to (f) of the said sub-section. To this section we would make further referenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the Supreme Court in the case of Commissioner of Income-tax v. West Bengal Infrastructure Development Finance Corporation Ltd., reported in (2011) 334 ITR 269 (SC), in which the following observations were made : "5. Looking to the amount of tax involved in this case, we are of the view that the High Court ought to have decided the matter on the merits. In all such cases where there is delay on the part of the Department, we request the High 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." 5. In response to Rule issued by us, the opponent has appeared and opposed the application by filing reply affidavit. In such affidavit, in addition to contending that there was gross negligence and inaction on the part of the applicant in pursuing the remedy, heavy reliance is placed on the decision of the Supreme Court in the case of Post Master General and others v. Living Media India Limited and another, reported in (2012) 3 SCC 563. The opponent has also placed reliance on a decision of the Division Bench of this Court dated August 27, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the office of the Government Pleader on March 21, 2011, which was received by the office of the Government Pleader on March 29, 2011. It is true that in the first affidavit appended to the application seeking delay condonation, there is no further explanation rendered thereafter. However, in the further affidavit dated April 25, 2013, it is further pointed out that all genuine efforts were made by the office of the applicant to file Tax Appeal within reasonable period and after submitting the papers in the office of the Government Pleader periodically inquiries were made by the Department regarding the status of the appeal. At sometimes the papers had to be resubmitted. Most significantly it is stated that it was orally conveyed by the office of the Government Pleader that due to heavy workload, the Tax Appeal could not be drafted and filed within reasonable period. 9. In our opinion, in facts of the present case, the delay is required to be condoned. In a recent order dated March 15, 2013 passed by this Court while dealing with Civil Application No.253 of 2012 in Stamp Number No.1579 of 2012, in somewhat similar background, we had condoned such delay in the process making follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertainly 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-non-grata 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 High Court for disposal on merits after affordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 red-tape 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 pragmatism in justice-o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge. Considering these aspects of the matter, delay is condoned by awarding cost of Rs.15,000/-, which shall be paid to the respondent within four weeks from today." 10. The above observations are referred to not for the purpose of demonstrating that both the cases are identical, but so as not to repeat the reference of decisions of the Courts having considerable bearing on the issue under consideration. 11. It is true that in the decision in the case of Living Media India Limited (supra), the Supreme Court has sounded a warning to the Government departments that the Court's patience with governmental delay is running out. This can be gathered from the observations made in paragraph 25 of the judgment as under : "25. We have already extracted the reasons as mentioned in the "better affidavit" sworn by Mr Aparajeet Pattanayak, SSRM, Air Mail Sorting Division, New Delhi. It is relevant to note that in the said affidavit, the Department has itself mentioned and is aware of the date of the judgment of Living Media India Ltd. as 11-9-2009. Even according to the deponent, their counsel had applied for the certified copy of the said judgment only on 8-1- 2010 and the same was rece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . This factual assertion on affidavit has not been disputed by the opponent. 15. In addition to the above noted explanation for delay, we further notice that the issue involves considerable tax effect. Though precise figures are not on record, the learned counsel for the assessee stated on instructions that the effect in one of the years is in excess of Rs.1.25 crore. The effect of order passed by the Tribunal is one of recurring nature and the total tax effect, therefore, would be multiplied several times for each successive year during which the issue retained its relevance. Section 80 of the Act pertains to determination of disputed questions and reads as under : "Section 80 : If any question arises, otherwise than in proceeding before a court, or proceedings under section 33, 34 or 35, whether for the purposes of this Act- (a) any person, society, club or association or any firm or any branch or department of any firm is a dealer; or (b) any particular thing done to any goods amounts to or results in the manufacture of goods within the meaning of that term, or (c) any transaction is a sale or purchase, or (d) any particular dealer is required to be registered, or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... form of a motor vehicle or attached or mounted to a motor vehicle", for nearly four years the original entry held the field. The assessment of the opponent thus would be governed by the opinion expressed by the Tribunal in the impugned judgment for such period. We record these facts to demonstrate that the tax effect is very large and runs into crores of rupees. 17.We are not deviating from the decision of this Court in the case of State of Gujarat v. Swastik Sanitary Wares Ltd. [O.J. Civil Application No.124 of 2012 in Stamp Number No.777 of 2012]. The question of grant or refusal of petition for condonation of delay essentially is one of facts and no parallel identical case can be traced normally. In the present case, we have noticed certain peculiar aspects as already elaborated in earlier portion of the order, including the nature of explanation for delay and the nature of the proceedings out of which the judgment of the Tribunal under challenge has been rendered. 18. Under the circumstances, looking to the nature of dispute, the explanation rendered and the recurring nature of effect at least for a certain period and the total tax effect, we are inclined to condone the delay ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
