STATE OF GUJARAT Vs. DUNCANS TEA LTD

JUDGEMENT

(1.) PRESENT application under section 5 of the Limitation Act has been preferred by the State of Gujarat to condone the delay of 1222 days in preferring the tax appeal challenging the judgment and order dated 31.08.2009 passed by the Gujarat Value Added Tax Tribunal, Ahmedabad in Revision Application No.52/2009.

(2.) MS . Shruti Pathak, learned Assistant Government Pleader appearing on behalf of the applicant ­ State of Gujarat has submitted that the delay has been explained in support of the prayer to condone the delay. It is submitted that after the judgment and order passed by the Tribunal was received by the Department on 14.09.2009, the proposal to file the tax appeal against the said judgment was sent to the Finance Department on 17.05.2010. That the Finance Department, Gandhinagar granted permission on 17.06.2010 and on receipt of the said permission, immediately all the relevant papers were sent by the Commercial Tax Department to the office of the Government Pleader for filing the tax appeal, which were received by the office of Government Pleader on 23.09.2010. It is submitted that thereafter genuine efforts were made by the office of Commercial Tax Department to see that the appeal is filed and even inquiries were made in the office of Government Pleader. However, it was orally conveyed by the officer of the Government Pleader that due to heavy workload, tax appeal could not be drafted and could not be filed within the reasonable time. It is submitted that the applicant has a very meritorious case and amount involved in the matter is very huge i.e. Rs.3,18,73,991/. It is submitted that even the decision passed in revision application, which is subject matter of the tax appeal, may adversely affect the similar dealers in whose cases also large amount of revenue is involved. Therefore, relying upon the decision of the Hon'ble Supreme Court in the case of CIT vs. West Bengal Infrastructure Development Finance Corporation Ltd. reported in 334 ITR 269 (SC) as well as the decision dated 15.03.2013 of the Division Bench of this Court in the case of State of Gujarat vs. Welspun Gujarat Stahl Rohren Ltd. rendered in Civil Application No.253/2012, it is requested to condone the delay.

(3.) HEARD Ms. Pathak, learned AGP appearing on behalf of the applicant and Shri Manish Kazi, learned advocate appearing on behalf of the respondent. At the outset it is required to be noted that in the present case, the amount involved is Rs.3,18,73,991/, which is a very big amount. Identical question came to be considered by the Division Bench of this Court in the case of Welspun Gujarat Stahl Rohren Ltd. (Supra) and considering the large amount of the revenue involved and considering the decision of the Hon'ble Supreme Court in the case of the West Bengal Infrastructure Development Finance Corporation Ltd. (Supra), the Division Bench has condoned the delay of 732 days which was sought on similar grounds. The Division Bench of this Court while condoning the delay of 732 days observed as under: "In the present case, however, we find for the reasons recorded thereinafter, such delay is required to be condoned. Firstly, in our opinion, the affidavit contents of which are noted above, renders reasonable explanation for such delay and gives reasons why appeal could not be presented within the prescribed time limit. It is pointed out that upon receipt of the judgment of the Tribunal, after obtaining opinion of the concerned officers, a decision was taken for filing the appeal. Approval from the Finance Department had thereafter, to be obtained. After obtaining such approval, necessary papers were handed over to the office of Government Pleader, Gujarat High Court. Due to heavy work load and shortage of staff, considerable time was consumed in the office of the Government Pleader in drafting such appeal. It is contended that the appeal involves substantial question of law. Simultaneously, we also notice that the duty amount involved in the present case is in excess of Rs.6 Crores. In our opinion, looking to the nature of delay, explanation rendered by the appellant in various affidavits and the tax impact in the appeal, we would be inclined to condoned the delay. We would not in the case of this nature, like to dismiss the State appeal without consideration on merits. The applicant has correctly placed reliance on the observation of Supreme Court in case of Commissioner of Income Tax vs. West Bengal Infrastructure Development Finance Corporation Ltd, reported in [2011] 334 ITR 269 (SC), in which it was observed thus : "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." 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, filepushing, and passingonthebuck 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 litigantnongrata 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 affording opportunity of hearing to the parties. In Prabha v. Ram Parkash Kalra (1987 Supp SCC 339), this Court had held that the court should not adopt an in justice oriented approach in rejecting the application for condonation of delay. The appeal was allowed, the delay was condoned and the matter was remitted for expeditious disposal in accordance with law.