Punjab-Haryana High Court
M/S Bhagwan Dass Contractor vs State Of Haryana And Another on 10 April, 2024
Author: Sanjeev Prakash Sharma
Bench: Sanjeev Prakash Sharma
Neutral Citation No:=2024:PHHC:048845-DB
VATAP-371-2019 (O&M) 2024:PHHC:048845-DB
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
VATAP-371-2019 (O&M)
Date of Decision: 10.04.2024
M/s Bhagwan Dass Contractor
. . . . Appellant
Vs.
The State of Haryana and another
. . . . Respondents
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CORAM: HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA
HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
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Present: Mr. Sandeep Goyal, Advocate
for the appellant.
Ms. Tanisha Peshawaria, DAG, Haryana.
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SANJEEV PRAKASH SHARMA, J.(Oral)
1. This is an appeal preferred by the assessee assailing the order passed
by the Haryana Tax Tribunal dated 08.08.2019 whereby the appeal was
rejected, finding the explanation for long and inordinate delay of 1229
days in filing the appeal as unsatisfactory.
2. Learned counsel submits that an application under Section 5 of
Limitation Act was filed by the appellant wherein it was stated that the
appellant's last counsel had advised to the assessee that no appeal
should be filed at this stage because the case has been remanded back
by the Revisional Authority to the Assessing Authority, and keeping in
view the advice given by the lawyer, the assessee did not file the
appeal. He was under an impression that the appeal could be filed only
after the matter was finalized by the Assessing Authority.
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3. It is submitted that the lawyer was a tax expert and given his advice
and as such, the appeal was not filed. It is further stated that the
Assessing Authority decided the issue of levying of interest on
12.01.2018 and the same was delivered to the counsel for the assessee
on 16.02.2018. However, soon thereafter, the lawyer suffered seizure
disorder and was hospitalized. After he was discharged, he could not
resume his normal work and suffered memory loss, and did not apprise
the assessee of the passing of the order by the Assessing Authority. It
was only when the demand notice was served on the assessee on
14.09.2018, he approached his lawyer and ultimately looked at the old
record on 01.04.2019 and thereafter, the assessee contacted another
advocate at Chandigarh who advised him to file an appeal along with
the application for condonation of delay.
4. We have carefully considered the submissions.
5. Learned counsel, in support of his contentions, has invited our
attention to the judgments passed by the Supreme Court in the cases of
N. Balakrishnan vs. M. Krishnamurty, (1998) 7 SCC 123 and Rafiq
and another vs. Munshilal and another, (1981) 2 SCC 788; judgment
of Kerala High Court in the case of Rajesh Chandran vs. M.R.
Gopalkrishnan Nair and others, OP(C) No.281 of 2022; and judgment
of Madhya Pradesh High Court in the case of Mahaveer Prasad Jain vs.
Commissioner of Income Tax, (1988) 172 ITR 331.
6. In the case of N. Balakrishnan (supra), the Apex Court was considering
a case where the appellant had engaged an advocate who did not
inform about the application having been dismissed in default, and
when the summons for execution were received, the concerned
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appellant had approached the counsel, but the counsel misled him and
did not take up any proceedings, and he later on left the appellant and
joined in some other firm. Considering the said aspects and also that
the appellant therein had taken up the proceedings against the lawyer
and had received a sum of Rs.50,000/- from the Consumers Forum on
account of the default of the lawyer in performing his services, the
Court proceeded to condone the delay of 883 days, and observed as
under:
"9. It is axiomatic that condonation of delay is a matter
of discretion of the court Section 5 of the Limitation Act does
not say that such discretion can be exercised only if the delay is
within a certain limit. Length of delay is no matter, acceptability
of the explanation is the only criterion. Sometimes delay of the
shortest range may be uncondonable due to want of acceptable
explanation whereas in certain other cases delay of very long
range can be condoned as the explanation thereof is
satisfactory. Once the court accepts the explanation as sufficient
it is the result of positive exercise of discretion and normally the
superior court should not disturb such finding, much less in
reversional jurisdiction, unless the exercise of discretion was on
whole untenable grounds or arbitrary or perverse. But it is a
different matter when the first cut refuses to condone the dela. In
such cases, the superior cut would be free to consider the cause
shown for the delay afresh and it is open to such superior court
to come to its own finding even untrammeled by the conclusion
of the lower court.
10. The reason for such a different stance is thus:
The primary function of a court is to adjudicate the
dispute between the parties and to advance substantial justice.
Time limit fixed for approaching the court in different situations
in not because on the expiry of such time a bad cause would
transform into a good cause.
12. A court knows that refusal to condone delay would
result foreclosing a suitor from putting forth his cause. There is
no presumption that delay in approaching the court is always
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deliberate. This Court has held that the words "sufficient cause"
under Section 5 of the Limitation Act should receive a liberal
construction so as to advance substantial justice vide
Shakuntala Devi Jain Vs. Kuntal Kumari [AIR 1969 SC 575]
and State of West Bengal Vs. The Administrator, Howrah
Municipality [AIR 1972 SC 749].
13. It must be remembered that in every case of delay
there can be some lapse on the part of the litigant concerned.
That alone is not enough to turn down his plea and to shut the
door against him. If the explanation does not smack of mala
fides or it is not put forth as part of a dilatory strategy the court
must show utmost consideration to the suitor. But when there is
reasonable ground to think that the delay was occasioned by the
party deliberately to gain time then the court should lean
against acceptance of the explanation. While condoning delay
the Could should not forget the opposite party altogether. It
must be borne in mind that he is a looser and he too would have
incurred quiet a large litigation expenses. It would be a salutary
guideline that when courts condone the delay due to laches on
the part of the applicant the court shall compensate the opposite
party for his loss."
7. In the case of Rafiq and another (supra), the appellant's counsel had
not appeared in the Court and ex-parte order of dismissal was passed,
and therefore the appeal was allowed and case was restored, and costs
was to be recovered from the lawyer who had absented himself.
8. In the case of Mahaver Prasad Jain (supra) coming up before Madhya
Pradesh High Court, the restoration application was allowed as the
counsel failed to appear and also did not inform the concerned litigant.
9. In the case of Rajesh Chandran (supra), the Kerala High Court restored
the claim petition and condoned the delay in relation to the case
relating to claim under Motor Vehicles Act in MACT case.
10. In the present case, however, we find that the appellant had engaged
his counsel and it is not a case where the counsel did not inform him
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about the decision. Of course, it is stated that he had advised the
appellant not to file an appeal and to await the decision in the remand.
But it is for the concerned appellant to have taken a decision. Once he
accepts the advice of his counsel and thereby accepts the verdict of the
authority, and chooses not to file an appeal with regard to the issues
which have been finally decided relating to the tax imposition of
Rs.6,32,091/- with included refund of Rs.2,41,371/-, and was waiting
only with regard to the issue relating to remand on interest part, it
cannot be said that the appellant was not having knowledge of his
rights.
11. In our opinion, a lawyer's advice as accepted by a litigant, has to be
treated as a decision taken by the litigant himself, and once he has
taken a decision not to proceed further to a higher court, it has to be
presumed that he has accepted the verdict, and subsequently he cannot
turn around and state giving reasons of wrongful advice given by the
lawyer.
12. Such excuses would not be treated as reasonable grounds for
condonation of delay, and therefore, we are in agreement with the
order passed by the Haryana Tax Tribunal dated 08.08.2019, and find
that the judgments which have been cited at bar, have no iota of
similarity with the facts of the present case.
13. Question regarding condonation of delay has to be examined on the
facts of each case, and each case is different on facts. Although the
Court would always attempt to decide the case on merits, but huge
delay would have to be examined considering all the aspects. The
assessee is found to have not even deposited the amount as decided by
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the authority since 2015, and thus it cannot be said that bona fides are
in his favour.
14. In view of above, appeal stands dismissed.
15. All pending applications also stand disposed of accordingly.
(SANJEEV PRAKASH SHARMA)
JUDGE
(SUDEEPTI SHARMA)
JUDGE
April 10, 2024
Mohit goyal
1. Whether speaking/reasoned? Yes/No
2. Whether reportable? Yes/No
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