RADHARAMAN STORE Vs. ORISSA SALES TAX TRIBUNAL

JUDGEMENT

(1.) DELAY in presentation of the second appeal filed by the Revenue having been condoned by the Orissa Sales Tax Act Tribunal (in short, "the Tribunal"), assessee has filed this writ application for interference.

(2.) FILTERING out unnecessary details, factual position which is undisputed is as follows : Petitioner filed appeals before the Assistant Commissioner of Sales Tax, Cuttack Range, Cuttack against the order of assessment made for the assessment years 1988-89 and 1989-90. By order dated November 17, 1993 the Assistant Commissioner annulled the extra demand raised for the assessment year 1988-89, and remanded the matter to the assessing officer for fresh assessment for the assessment year 1989-90. The order was issued by the Assistant Commissioner to the parties on December 10, 1993, and was received in the office of the Commissioner of Sales Tax, Orissa on December 14, 1993. Due date for filing of second appeals was February 12, 1994, but the appeals were filed on April 4, 1994, and thus there was delay of 50 days. On September 2, 1994 notice was issued by the Tribunal to the Revenue to rectify the defects, which were not removed. Again on January 16, 1995 notice in form XX was issued fixing the date for taking steps to February 10, 1995. On February 6, 1995, the defects were removed, but no action was taken so far as delay in presentation of the appeals is concerned. On February 7, 1995, an application for condonation of delay was filed. On February 10, 1995 there was no compliance. On March 13, 1995 Tribunal issued notice to hear parties on the question of limitation. By order dated April 5, 1995 delay was condoned.

(3.) AT this Juncture it is necessary to take note of settled position in law so far as limitation matters are concerned. Delay in making a motion can be condoned if sufficient cause is shown. What constitutes sufficient cause cannot be laid down by hard and fast rule. In New India Insurance Co. Ltd. v. Smt. Shanti Misra [1977] 47 Comp Cas 453 (SC); AIR 1976 SC 237, apex Court held that discretion given by section 5 should not be defined or crystallised so as to convert a discretionary matter into a rigid rule of law. The expression "sufficient cause" should receive a liberal construction. In Inder Singh v. Kanshi Ram AIR 1917 PC 156, it was observed that true guide for a court to exercise the discretion under section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal. In Shakuntala Devi Jain v. Kuntal Kumari [1969] 1 SCR 1006, apex Court held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.