M/S K.C. Flour Mill vs State Of U.P. And 2 Others
2023 Latest Caselaw 15766 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Neutral Citation No. - 2023:AHC:110019
 
Reserved
 
Court No. - 6
 

 
Case :- WRIT TAX No. - 639 of 2020
 
Petitioner :- M/S K.C. Flour Mill
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Aditya Bhushan Singhal,Aditya Pandey
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Piyush Agrawal,J.

1. Heard Mr. Aditya Pandey, learned counsel for the petitioner and Mr. Rishi Kumar learned Additional Chief Standing Counsel for the State.

2. By means of present petition petitioner is seeking a writ of certiorari for quashing the order dated 12.3.2020 passed by respondent no. 2 in Second Appeal Defective No. 01 of 2018 (A.Y. 2013-14), Commissioner Commercial Tax Vs. M/s K.C. Flour Mill, under the provisions of Section 57 (6) of UP VAT Act, 2008 (herein after referred to as 'the Act').

3. Learned counsel for the petitioner submits that petitioner was Proprietorship firm running flour mill in the name of M/s K.C. Flour Mill and engaged in the business of manufacture and sale of Atta, Maida and Sooji. In normal course of business, the petitioner had deposited the admitted due tax for the assessment year in question. He submits that initially an ex-parte assessment order was passed on 13.6.2015, which was recalled under Section 32 of the Act and thereafter again a fresh assessment order was passed on 12.6.2016 estimating the tax liability of Rs. 8,10,906/- against which, a first appeal was preferred by the petitioner before the Additional Commissioner, Grade II, Bulandshahr. The said first appeal was allowed vide order dated 8.6.2016 and the petitioner was granted relief of Rs. 6,54,500/- towards the tax liability. However, still feeling aggrieved to the said order, the petitioner filed a second appeal before the Tribunal, which is still pending and dates are being fixed from time to time for hearing of the appeal and the State are also represented.

4. He further submits that order of the first appellate authority has attained finality on 10.10.2016 as the department has not preferred any statutory appeal before the Commercial Tax Tribunal within the limitation. However, the revenue department has preferred a second appeal on 8.1.2018 against the order of first appellate authority with the delay of 453 days, along with delay condonation application. In the delay condonation application, the grounds were taken that the competent officer was on election duty of Vidhan Sabha and there was acute shortage of manpower in the department as well as excessive workload as such the appeal could not be preferred within the limitation.

5. It was further pointed out that the petitioner submitted his objection to the said delay condonation application specifically mentioning therein the specific dates as and when the officers were on election duty as well as who was the authorized person to whom the additional charge was given. The petitioner also referred in his objection that there was no shortage of manpower in the department, however, without considering the said objection of the petitioner, the delay in filing the second appeal by the department, was condoned by the impugned order.

6. Learned counsel for the petitioner has relied upon the judgement of this Court in 2018 (100) UPTC 1447, M/s Anil Enterprises Vs. State of U.P. and others, relevant paras of which are quoted below:-

"8. Learned counsel for the petitioner therefore submits that the Tribunal has acted whimsically and has condoned the inordinate delay in a perfunctory manner merely for the asking, by the revenue. Once it was admitted to the revenue that it's appeal was barred by more than 689 days, a heavy burden lay to plead facts as may warrant condonation of such a delay.

9. It has been further submitted that in tax matters closure of disputes brings certainty to the assessee as he has to provide for the liabilities while continuing with his business. Therefore, the Tribunal ought to have considered the issue of condonation of delay more seriously and if that had been done, the application for condonation of delay had to be necessarily rejected inasmuch as the revenue did not plead or establish any fact or circumstance as may commend condonation of delay. Mere existence of official work or assignment of certain duties pertaining to elections could not itself be a factor to condone a long delay of 689 days. Though a day to day explanation would not be required, however, in substance a bona fide explanation should have been offered. In absence of such explanation being offered, the Tribunal has wholly erred in condoning the delay by taking a lenient view of the matter.

10....

11....

12. In the facts of the present case, considering the delay was of more than 689 days, the explanation offered was wholly inadequate and facile. Neither the name or particulars of the officials or their designations were disclosed nor the extra duties assigned to them were disclosed nor there was any other stand disclosed as may establish credibility of the explanation. It appears that the explanation was merely a pretence and/or an after thought to seek condonation of delay without stating true and correct facts. Al so, there is no allegation of fraud or collusion on part of the assessee in causing the delay."

7. He further relied upon the judgment and order of this Court in Sales/ Trade Tax Revision Defective No. 55 of 2014 (C.C.T. Vs. S/S Jagdish Prasad and sons) decided on 16.1.2015, in which it has been held that the work of no department can be left unattended only for the reason that there is shortage of employees or that the officers has not been posted.

8. Learned counsel for the petitioner has further relied upon the judgment of the Apex Court in Special Leave Petition (Civil ) Diary No. 13348 of 2020 (State of M.P. and others Vs. Chaitram Maywade) decided on 27.10.2020, in which Hon'ble the Apex Court has imposed the cost upon the State looking to the period of delay in approaching the Court.

9. He further relied upon the judgement of Apex Court in Special Leave Petition (Civil ) Diary No. 19059 of 2020 (Deputy Conservator of Forests Vs. Timblo Irmaos Ltd and others ) decided on 18.12.2020 in which the Supreme Court has held as under:

"We have dealt with the issue of Government Authorities in approaching Courts belatedly as if the Statute of Limitation does not exists for them. While referring to some reasons given for insufficiencies, we observed that the parties cannot keep on relying on judicial pronouncements for a period of time when technology had not advanced and a greater leeway was given to the Government, (Collector, Land Acquisition, Anantnag and another (supra). This situation no more prevail and this posision had been elucidated by the judgmeent of this Court in office of the Chief Post Master General and others Vs. Living Media India Ltd. And another (2012) 3 SCC 563."

10. Learned counsel for the petitioner submits that in view of the aforesaid judgments of this Court as well as the Supreme Court the grounds of delay in filing the second appeal cannot be accepted for condonation of delay. He prays for quashing of the impugned order.

11. Per contra, learned Standing Counsel submits that since the second appeal has been preferred by the State, a liberal view should be adopted. He relied upon the judgement of Hon'ble the Supreme Court in the case of Collector, Land Acquisition Anantnag and others Vs. Mst. Katiji and others, 1987, 2 SCC 104. He prays for dismissal of the present petition.

12. After hearing learned counsel for the parties, the Court has perused the records.

13. It is admitted that the second appeal was preferred by the revenue department with delay of 453 days. In support of its claim, the department has preferred an application for condonation of delay, which is extracted herein below :-

"समक्षः माननीय सदस्य, राज्य कर अधिकरण पीठ, अलीगढ़।

द्वितीय अपील संख्या ......../ 2017

आयुक्त राज्य कर उत्तर प्रदेश लखनऊ...... वादी

बनाम

सर्वश्री के०सी० फ्लोर मिल, सुभाष रोड, खुर्जा

विषय:- विलम्ब क्षमा प्रार्थना-पत्र लिमिटेशन एक्ट की धारा-5 के अन्तर्गत निम्न आधारों पर प्रस्तुत किया जा रहा है-

माननीय महोदय,

उक्त वाद में प्रथम अपील संख्या - 0384 / 16 वर्ष 2013-14 उ0प्र0 मूल्य सवर्धित कर अधिनियम की धारा 28 ( 2 ) (ii) में अपीलीय निर्णय विद्वान एडीशनल कमिश्नर ग्रेड-2 (अपील) वाणिज्य कर, बुलन्दशहर द्वारा दिनांक 08.06.2016 को पारित किया गया था, जो राज्य प्रतिनिधि कार्यालय अलीगढ़ में दिनांक 12.07.2016 को प्राप्त हुआ है। इस प्रकार इस बाद में कालबाधन तिथि दिनांक 10.10.2016 होती है। परंतु निम्न कारणों से द्वितीय अपील दायर प्रस्ताव समय से प्रस्तुत नहीं किया जा सका है-

1. यह है कि कर निर्धारण अधिकारी द्वारा अवगत कराया गया है कि खण्ड में कोई स्थायी अधिकारी नियुक्त न होने, बरिष्ट सहायक की तैनाती न होने तथा विधानसभा चुनाव में परिक्षक के साथ अधिकारी की तैनाती होने के कारण एवं कार्यालय में कर्मचारियों की जनशक्ति की अत्यधिक कमी होने तथा एक कर्मचारी से अधिक पटल का कार्य लेने एवं कार्य की अधिकता के फलस्वरूप द्वितीय अपील दायर प्रस्ताव निर्धारित समयावधि के अन्तर्गत प्रेषित नहीं किया जा सका है।

2.यह है कि कर निर्धारण अधिकारी द्वारा द्वितीय अपील प्रस्ताव विलम्ब से इस कार्यालय को प्राप्त कराये जाने तथा राज्य प्रतिनिधि कार्यालय में जनशक्ति से काफी कम स्टाफ (केवल एक वरिष्ठ सहायक व एक आशुलिपिक) तैनात हैं। राज्य प्रतिनिधि कार्यालय में कोई टंकण भी तैनात नहीं हैं। स्टाफ की अत्यधिक कमी के कारण द्वितीय अपील समय से दाखिल नहीं की जा सकी।

3- यह है कि द्वितीय अपील दायर करने में दिनांक 10.10.2016 से दिनांक 06-01-18 तक 453 दिनों का विलम्ब हुआ है जो जानबूझकर नहीं बल्कि अपरिहार्य कारणों से हुआ है।

4- "यह है कि माननीय सर्वोच्च न्यायालय द्वारा सर्व श्री in Collector, Land Acquisition, Anantrang & Anr. v. Mst Katiji & Ors. (1987) 2 SCC 104, 4 में लैंडमार्क निर्णय लिया गया कि "every day delay must be explained" does not mean that a pedantic approach; should be made. The doctrine must be applied in a rational common sense prognatic manner. When subanntial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side can not claim to have vested right in injustice being done because of a non-deliberate delay. There is no presumption that delay is occasioned deliberately, or no account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. Judiciary is not respected on account or its power to legalize injustice on technical ground but because it is capable of institution of the appeal. The fact that it was the state which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before low demands that all litigants, including the state as per litigant, are accorded the same treatment and the low is administered in an even-handed manner. There is no warrant for according a step-motherly when the state is the applicant. The delay was accordingly condoned.

माननीय सुप्रीम कोर्ट द्वारा सर्वश्री O.P.Kathpolian v. Lakhmir Singh (dead) & Ors. ((1984) 4 SCC (66) तीन सदस्य बैंच ने निर्णय दिया है कि if the refusal to condone the delay result in grave miscarriage of justice it would be a ground to condone the delay. Delay was accordingly condoned."

इसके अतिरिक्त मा० सर्वोच्च न्यायालय ने सर्व श्री State of Haryana vs Chandra Mani & Ors on 30 January, 1996 AIR 1623, SCC (3) 132], in G. Ramegowda, Major & Ors, v. Spl, Land Acquisition Officer, Bangalore [(1988) 2 SCC 142] The delay of over one year was accordingly condoned. In M/s. Shakambari & Co.v. Union of India [(1993) Supp. 1 SCC 487], a Bench of three Judge held that delay caused in filing the appeal due to fluctuation in laying down the law was held to be a sufficient cause and delay of 14 days was condoned, Ram Krishan & Athrs UP Sate Roadways Transport Corpn & Anr [ (1994) Supp. 2 SCC 507] In Warlu v. Gangortribu & Anr.[(1995) Supp. 1 SCC 37] three Judge Bench condoned delay of 11 years in filing the special leave petition, Smt. Milavi Devi v. Dina Nath [ (1982) 3 SCR 366] आदि विभिन्न निर्णयों में विलम्ब क्षमा प्रार्थना को स्वीकार किया गया है।

-प्रार्थना-

अतः माननीय न्यायालय से विनम्र निवेदन है कि न्याय के हित में विलम्ब को क्षमा करने एवं द्वितीय अपील की सुनवाई हेतु नियमित पंजीकृत करने की कृपा करें।

संयुक्त आयुक्त (कार्यपनिक) राज्यकर

बुलन्दशहर संभाग बुलन्दशहर

उप आयुक्त एवं राज्य प्रतिनिधि

राज्य कर अधिकरण पीठ अलीगढ़"

14. The petitioner submitted its objection along with various judgements of this Court as well as Hon'ble the Supreme Court, however, without considering the same, the delay in filing the appeal has been condoned and second appeal filed by the department has been admitted. On perusal of the said application for condonation of delay, it transpires that the reasons assigned by the department were that there was no competent officer, who discharge the duty as well as the officers were on election duty and also there was a shortage of manpower in the department as such the appeal could not be preferred within limitation. So far as the plea taken by the State that the officers were on election duty are concerned, specific objection was raised by the petitioner in this respect giving the details of the officers, who were on election duty and also put the relevant materials on record to controvert the other grounds raised for condonation of delay, however, without considering the same, the impugned order has been passed. The explanation given for condonation of delay by the State authority for filing the appeal beyond limitation of 453 days, is wholly inadequate and unjustifiable as neither the details of the officers, who were posted on election duty is mentioned nor any date and time of their joining back on their duty, were given.

15. The Supreme Court in the case of Office of Chief Post Master General and others Vs. Living Media India Ltd. And another, Civil Appeal No. 2474-2475 of 2012 decided on 24.2.2012 has held as under :-

"13) 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 bonafide 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 government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay."

16 In such circumstances, the Tribunal has committed illegality in condoning the delay without appreciation of the objection filed by the petitioner as well as sufficiency of cause for not filing the second appeal within the limitation.

17. In view of above, the impugned order dated 12.3.2020 passed by respondent no. 2 in Second Appeal Defective No. 01 of 2018 (A.Y. 2013-14), (Commissioner Commercial Tax Vs. M/s K.C. Flour Mill), is hereby set aside. The writ petition is allowed with the cost of Rs. 5000/- awarded to the petitioner. The cost shall be paid by the department within 15 days from today. The State exchequer will be at liberty to recover the said cost from the erring officer.

Order Date :- 19.5.2023

Rahul Dwivedi/-