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DELAY CONDONATION Delay not condoned - Discussion of various decisions DELAY CONDONATION Delay not condoned - Discussion of various decisions

DELAY CONDONATION Delay not condoned - Discussion of various decisions - PDF document

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DELAY CONDONATION Delay not condoned - Discussion of various decisions - PPT Presentation

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DELAY CONDONATION Delay not condoned - Discussion of various decisions on the point. IN THE GUJARAT VALUE ADDED TAX TRIBUNAL AT AHMEDABAD Hon’ble Mr. Justice K.A. Puj (Retd.), President Mr. Y.P. Bhatt, Member SECOND APPEAL NO. 561 OF 2013 M/S LUPIN LIMITED ......................................... Appellant v/s Per: Hon’ble Mr.Justice K.A.Puj (Retd.). President The appellant has filed this appeal against the order passed by the learned Joint Commissioner of Commercial Tax, Appeal-2, Vadodara on 9/5/13, whereby therefore there was no intentional delay on the part of the appellant. It is only because of the ignorance of the provisions of law, the delay was caused and hence appeal filed by the appellant should not have been dismissed. He has, therefore, submitted that on due consideration of the facts of the case and all the relevant circumstances, the learned Joint Commissioner should have condoned the delay of 836 days in the interest of justice and said appeal should have been decided on merits. 7. Mr. C.D.Parmar, the learned Govt. Agent appearing for the respondent has submitted that there is gross and inordinate delay on the part of the appellant in filing first appeal before the learned Joint Commissioner and for such delay no satisfactory explanation was given by the appellant. He has further submitted that the appellant itself has stated in the statement of facts and grounds of appeal that the decision of this Tribunal in the case of M/s Reliance Industries Ltd. came to its notice and the date of such decision is 26/4/12 and after that decision, the appeal was filed before this Tribunal on 15/7/13 i.e. after more than one year and three months from the date of decision of this Tribunal in the case of M/s Reliance Industries Ltd. Even the Hon’ble Gujarat High Court has also decided Tax Appeal filed by M/s Reliance Industries Ltd. on 18/1/13 and the appellant could not file the appeal even after the expiry of the period of more than six months from the date of the said decision. Thus, the explanation given by the appellant for late filing of appeal is not at all convincing and hence the learned Joint Commissioner has rightly dismissed the said appeal. He has further submitted that the due compliance of statutory provisions within the prescribed time limit is an obligation cast upon the appellant under the Act and if any breach of any such statutory provisions without any reasonable cause is committed, the appellant will have to suffer the consequences. He has also submitted that recently the Hon’ble Gujarat High Court has dismissed Tax Appeals filed by the department late by about 1200 days and while dismissing all such appeals the Hon’ble Gujarat High Court has taken into consideration almost all the previous judgements on this issue. He has, therefore, submitted that following the said decisions, this Tribunal should hold that the learned Joint Commissioner has rightly taken decision. 8. Mr. Parmar relied on judgement of Hon’ble Gujarat High Court in the case of State of Gujarat vs Mahalaxmi Sugar Candy Works (CA No. 257 of 2013 in Tax Appeal (Stamp) No. 897 of 2013 decided on 3/5/13) and Civil Application No. 124 of 2012 in Tax Appeal(Stamp) No. 777 of 2012 decided on 27/8/2012 in the case of State of Gujarat vs Swastik Sanitary Wares Ltd. wherein it is held that explanation furnished for the delay in all delay condonation applications did not make out sufficient cause. The passage of long time resulting into long delay has not been satisfactorily explained. As no sufficient cause was made out, all the applications were rejected by the Hon’ble Gujarat High Court. He has, therefore, submitted that both these appeals should be dismissed only on the ground of long and inordinate delay without any satisfactory explanation. 9. Having herd Mr. M.B.Waghela, the learned advocate appearing for the appellant and Mr. C.D.Parmar, the learned Govt. Agent appearing for the respondent and having considered the delay condonation application and having considered the order passed by the learned Joint Commissioner of Commercial Tax dismissing the appeal only on the ground of late filing of said appeal of about 836 days, this Tribunal is of the view that the appellant has failed to explain satisfactorily the reasonable cause which prevented the appellant from filing the appeals in time. Moreover simply because the decision of this Tribunal as well as Hon’ble Gujarat High Court in the case of M/s Reliance Industries Ltd. (supra) came to the notice of the appellant, it has no relevance on statutory provisions relating to filing of first appeal in time before first appellate authority. As per the provisions contained in Section 73 of the Gujarat VAT Act, the appellant is supposed to file appeal before the first appellate authority, within the period of two months from the date of receipt of the order. It is true that the first appellate authority has power to condone delay in appropriate case, however, gross and inordinate delay of about 836 days and that too without any reasonable cause cannot be condoned by the first appellate authority. The cases referred to and relied upon by the appellant in support of its submission are depending upon their peculiar facts and ultimately everything depends on the reasonable cause shown for delay in filing appeals late. If the appellate authority is satisfied with the reasonable cause shown by the appellant, in that case the authority may condone the delay, irrespective of the length of delay. If no satisfactory explanation is furnished or the authority is not satisfied with the explanation, in that case, even the delay of shorter period may not be condoned. The very fact that the appellant has not bothered about filing of appeals before first appellate authority for about 836 days itself suggests that the appellant is not very serious about the appeal. 10. It is the case of the sheer negligence on the part of the appellant. The law will not help those persons who are not vigilant about the statutory obligations.Since there is no reasonable cause at all which inspires the confidence of first appellate authority to exercise its powers to condone delay of about 836 days, both these appeals filed before the appellate authority were rightly dismissed. Such dismissal order is required to be confirmed by this Tribunal. 11. While dismissing these appeals, this Tribunal derives support from two decisions of Hon’ble Gujarat High Court in the case of State of Gujarat vs Mahalaxmi Sugar Candy Works (CA No. 257 of 2013 in Tax Appeal (Stamp) No. 897 of 2013 decided on 3/5/13) and Civil Application No. 124 of 2012 in Tax Appeal (Stamp) No. 777 of 2012 decided on 27/8/2012 in the case of State of Gujarat vs Swastik Sanitary Wares Ltd. While dismissing these appeals on the ground of delay, the Hon’ble Gujarat High Court has taken into consideration the several decisions of Hon’ble Apex Court. In the case of Lanka Venkateshwarlu (D) by Legal Representatives vs State of Andhra Pradesh & others reported in AIR 2011 SC 1199, the delay was caused and no sufficient explanation was given and while setting aside the order passed by the High Court in condoning the delay, the Hon’ble Apex Court has held that the concept of liberal approach and justice oriented approach cannot be employed to jettison the substantial law of limitation. Hon’ble Apex Court was at a loss to fathom any logic or rationale, which could have impelled the High Court to condone the delay after holding the same to be unjustifiable. The concept such as liberal approach, justice oriented approach, substantial justice cannot be employed to jettison the substantial law of limitation, especially, in cases where the Court concludes that there is no justification for the delay. In the case of Balwant Singh (Dead) vs Jagdish Singh & others reported at 2010 AIR SCW 4848, the Hon’ble Apex Court has laid down the test for a sufficient cause and what is to be seen is as to whether the party by the exercise of due care and attention could have avoided the delay. It was reiterated that sufficient power and discretion is available with the Courts for applying this law in a meaningful manner but sufficient cause would mean presence of legal and adequate reasons. In the case of Postmaster General & others vs Living Media India Limited & Another reported in (2012) 3 SCC 563 the Hon’ble Apex Court has held that in absence of plausible and acceptable explanation, the court refused to condone the delay mechanically only because it was a Government wing. In the case of N.Balkrishnan vs M.Krishnamoorthy reported in (1998) 7 SCC 123, it was observed that the length of the delay is not the matter, but acceptability of the explanation is the only criteria. However, in Vedabhai vs Shantaram Baburao Patil (2001) 9 SCC 106, Hon’ble Apex Court opined that a distinction must be made between a case where delay is inordinate, and a case where delay is of few days. In the former case, the consideration of causing of prejudice to the other side is a relevant factor, whereas in the latter case, no such consideration arises. In the case of State of Gujarat vs Swastik Sanitary Wares Ltd., the Hon’ble High Court while viewing the said matters with the criteria of length of delay or judged from the yardstick of satisfactory explanation, and on both these counts, the case of the State of Gujarat stand bereft of acceptability. The same is the situation in the present appeals. Looking from any angle, either from the point of view of the length of delay or from the point of view of acceptability of the explanation, it cannot be said that delay of about 836 days should be condoned. Hence, there is no justification in any of the grounds raised by the applicant for condonation of delay caused in filing first appeal. 11. In view of the above discussion, we pass the following order: The appeal filed by the appellant is summarily dismissed by holding that the learned first appellate authority has rightly dismissed the said appeal on the ground of gross and inordinate delay. There is no order as to cost. Pronounced in open court on this 30 day of August, 2013. Sd/- Sd/- (Mr. Justice K.A.Puj) (Mr. Y.P.Bhatt) President Member