Commissioner Commercial Taxes ... vs M/S Midland 78 Keshav Bhaduri Marg ...
2023 Latest Caselaw 7272 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 22
 

 
Case :- SALES/TRADE TAX REVISION DEFECTIVE No. - 214 of 2013
 

 
Revisionist :- Commissioner Commercial Taxes U.P.Gomti Nagar Lko.
 
Opposite Party :- M/S Midland 78 Keshav Bhaduri Marg Lucknow
 
Counsel for Revisionist :- C.S.C
 
Counsel for Opposite Party :- Anand Dubey
 

 
Hon'ble Manish Mathur,J.

(Order on Application for condonation of delay)

Heard learned State Counsel appearing on behalf of revisionist. No-one has appeared on behalf of respondent(s).

Application has been filed seeking condonation of delay in filing revision against impugned judgment and order dated 11.11.2011 passed by Commercial Tax Tribunal, U.P. Lucknow in Second Appeal no.976 of 2011 pertaining to Assessment Year 2008-2009. Office has reported delay of one year, eight months, 12 days as on 19.12.2013. In the affidavit filed in support of application for condonation of delay, it has been stated that a copy of impugned judgment and order was received in office of revisionist on 07.01.2012 whereafter it was sent for approval for filing revision and was thereafter referred to the Law Department on 28.02.2013 whereafter contest permission was received and the case was allotted to learned State Law Officer on 07.03.2013. It is also stated that the revision was prepared in September 2013 whereafter the present revision has been filed on 19.12.2013.

It is submitted that state entities are on separate footing from an individual and ample leeway is required to be granted to state entities since it involves betting at various stages. Learned counsel has placed reliance on a number of judgments to buttress his submissions.

The delay in filing revision has been considered by this Court in Sales/Trade Tax Revision Defective No.6 of 2020 (Commissioner Commercial Tax U.P. Lko. Vs. M/s. R.C. & Sons., Rakabganj, Lucknow), with other connected defective revisions, decided on 7.9.2022, where the delay of 163 days was sought to be explained on the basis of the casual and lethargic attitude of the officials which prevails in the Department, on the part of the Officers concerned.

This Court in the case of Commissioner Commercial Tax U.P. Lko. Vs. M/s. R.C. & Sons (supra), has held as under:-

"7. Having heard the learned counsel appearing for the contesting parties and having perused the reasons indicated in the application for condonation of delay it emerges that the order of the learned Tribunal is dated 23.04.2019. The revision itself has been filed after a delay of 163 days. The reasons have been indicated in paragraphs 3 to 8 of the said application by indicating that initially a proposal had been sent for filing of a revision petition and thereafter the documents were sent. Later, the permission was sought for filing of revision which was received from the law department vide sanction letter dated 15.07.2019 and a request subsequently was made in July, 2019 to the office of the learned Chief Standing counsel, High Court, Lucknow for filing of a revision. The file was allotted for drafting after a period of almost one month and it took the learned Standing counsel a period of almost four and half months to file the revision and hence the delayed filing of revision."

The delay which often occurs on the part of the department in filing the appeals/revisions has been considered threadbare by the Apex Court in Postmaster General v. Living Media (India) Ltd., (2012) 3 SCC 563 : (2012) 2 SCC (Civ) 327 : (2012) 2 SCC (Cri) 580 : (2012) 1 SCC (L&S) 649 wherein the Apex Court after placing reliance on various earlier judgments of the Apex Court, including a few over which the learned Standing counsel has also placed reliance, held as under:-

"27.It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.

28.Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody, including the Government.

29.In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few."

Likewise, the Apex Court in the case of Union of India v. Central Tibetan Schools Admn., 2018 SCC OnLine Del 13371 has held as under:-

4.We have heard the learned Additional Solicitor General for some time and must note that the only error which seems to have occurred in the impugned order [Union of Indiav.Central Tibetan Schools Admn., 2018 SCC OnLine Del 13371] is of noticing that it is not an illiterate litigant because the manner in which the Government is prosecuting its appeal reflects nothing better! The mighty Government of India is manned with a large Legal Department having numerous officers and advocates. The excuse given for the delay is, to say the least, preposterous.

5.We have repeatedly been counselling through our orders various Government Departments, State Governments and other public authorities that they must learn to file appeals in time and set their house in order so far as the Legal Department is concerned, more so as technology assists them. This appears to be falling on deaf ears despite costs having been imposed in a number of matters with the direction to recover it from the officers responsible for the delay as we are of the view that these officers must be made accountable. It has not had any salutary effect and that the present matter should have been brought up, really takes the cake!

6.The aforesaid itself shows the casual manner in which the petitioner has approached this Court without any cogent or plausible ground for condonation of delay. In fact, other than the lethargy and incompetence of the petitioner, there is nothing which has been put on record. We have repeatedly discouraged State Governments and public authorities in adopting an approach that they can walk in to the Supreme Court as and when they please ignoring the period of limitation prescribed by the statutes, as if the Limitation statute does not apply to them. In this behalf, suffice to refer to our judgment inState of M.P.v.Bherulal[State of M.P.v.Bherulal, (2020) 10 SCC 654 : (2021) 1 SCC (Civ) 101 : (2021) 1 SCC (Cri) 117 : (2021) 1 SCC (L&S) 84] and State of Odishav.Sunanda Mahakuda[State of Odishav.Sunanda Mahakuda, (2021) 11 SCC 560] . The leeway which was given to the Government/public authorities on account of innate inefficiencies was the result of certain orders of this Court which came at a time when technology had not advanced and thus, greater indulgence was shown. This position is no more prevalent and the current legal position has been elucidated by the judgment of this Court in Postmaster General v. Living Media (India) Ltd.[Postmaster Generalv.Living Media (India) Ltd., (2012) 3 SCC 563 : (2012) 2 SCC (Civ) 327 : (2012) 2 SCC (Cri) 580 : (2012) 1 SCC (L&S) 649] Despite this, there seems to be a little change in the approach of the Government and public authorities.

7. We have also categorised such kind of cases as "certificate cases" filed with the only object to obtain a quietus from the Supreme Court on the ground that nothing could be done because the highest Court has dismissed the appeal. The objective is to complete a mere formality and save the skin of the officers who may be in default in following the due process or may have done it deliberately. We have deprecated such practice and process and we do so again. We refuse to grant such certificates and if the Government/public authorities suffer losses, it is time when officers concerned responsible for the same, bear the consequences. The irony, emphasised by us repeatedly, is that no action is ever taken against the officers and if the Court pushes it, some mild warning is all that happens.

8. Looking to the gross negligence and the impunity with which the Union of India had approached this Court in a matter like this, we consider it appropriate to impose special costs of Rs 1 lakh in this case to be recovered from the officer(s) concerned, to be deposited with the Supreme Court Advocates-on-Record Welfare Fund within four weeks.

9. The special leave petitions are dismissed as time-barred in terms aforesaid. Pending application stands disposed of.

Incidentally, the judgment of the Apex Court in the case of Central Tibetan Schools (supra) is a judgment by three Hon'ble Judges.

The Apex Court in the case of Commissioner of Customs, Chennai v. Volex Interconnect (India) Pvt. Ltd reported in (2022) 3 SCC 159 has held has under:-

"2.This is one more case of what we have already categorised as "certificate cases" and we do not delve further, as the purpose seems just to bring the matter to the Courts to put a closure to the same without giving any cogent explanation for condonation of delay in terms of Postmaster General v. Living Media (India) Ltd. (supra).

3.We have also examined the case on merits despite the aforesaid and find that a correct view has been taken by the Tribunal as the Department itself is treating the assessee in the same manner for subsequent years so far as classification is concerned.

4.We are thus of the view that for both the aforesaid reasons, the appeal is not liable to be entertained. The appeal is dismissed accordingly."

Considering the aforesaid judgments of the Apex Court what is to be seen is as to whether any plausible reason has been indicated by the revisionist in filing the instant revisions.

The time limitation for filing of Revision against order impugned is 90 days from the date of communication of the order. Despite receiving impugned judgment and order on 07.01.2012, there is no explanation as to why the revision itself, was preferred even one year and eleven months thereafter in December, 2013. All these facts indicate the casual and cavalier attitude on the part of the department in filing of the revision belatedly, rather, as observed by the Apex Court in the case of Central Tibetan Schools (supra) other than the lethargy and incompetence of the revisionist, there is nothing which has been brought on record to explain the delay.

Keeping in view the aforesaid discussion including the judgments of the Apex Court in the cases of Living Media India Ltd (supra), Central Tibetan Schools (supra) & Volex Interconnect (supra) , all judgments being of a latter date to the judgments cited by learned counsel for the revisionist including the judgment of Central Tibetan Schools (supra) being a three judges judgment, the Court does not find any plausible or cogent reason for condoning the delay.

Accordingly, the application for condonation of delay and consequently the revision itself is dismissed.

(Order in memo of revision)

Dismissed. For orders, see order of date passed on the application for condonation of delay.

Order Date :- 14.3.2023

kvg/-