Assistant Commissioner , C.T.O. ... vs M/S National Metals Ltd., Jodhpur
2022 Latest Caselaw 6498 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Sales Tax Ref./rev. No. 24/2018

Assistant Commissioner, Commercial Taxes Officer, Circle - C, Jodhpur.

----Petitioner Versus M/s National Metals Ltd., Jodhpur.

                                                                    ----Respondent


For Petitioner(s)           :     Mr. Hemant Dutt
For Respondent(s)           :     -



            HON'BLE MR. JUSTICE SANDEEP MEHTA

HON'BLE MR. JUSTICE VINOD KUMAR BHARWANI

Judgment / Order

05/05/2022

Heard.

This Sales Tax Ref./revision is delayed by 50 days.

The instant Sales Tax Ref./Rev. has been filed against the

impugned order dated 02.08.2017 passed by the learned

Rajasthan Tax Board, Ajmer passed in Appeal

No.483/2013/Jodhpur whereby the appeal filed by the petitioner

against the Appellate Order dated 03.09.2012, allowing the appeal

preferred by the respondent-assessee, was rejected by the

learned Dy. Commissioner (Appeals) I, Commercial Taxes,

Jodhpur.

Learned counsel for the petitioner submits that the certified

copy of the impugned order dated 02.08.2017 was obtained on

24.08.2017, but the appeal has been filed on 11.04.2018 due to

unavoidable circumstances mentioned in the application under

Section 5 of the Limitation Act. He further submits that delay

(2 of 6) [STR-24/2018]

caused in fling the instant Ref./Rev. is bonafide and is not

deliberate. Thus, he prays to condone the aforesaid delay.

All that has been stated to seek condonation of delay in the

application is as below:-

"1. That the instant revision petition has been filing against the order dated 02.08.2017 passed by the learned Tax Board, Ajmer and received the copy of order dated 02.08.2017 on 24.08.2017 and same is based on cogent and strong grounds and there is every hope of success in it.

2. That after receipt of the copy of order form this learned Tax Board, the same was send to the department. The department further send to the same to the competent higher authority for seeking necessary instructions. Thereafter, copy sent for filing of revision petition before this Hon'ble Court to the Department Standing Counsel thus, in these circumstances a slight delay has occurred in filing the revision petition which is bonafide as the same is caused due to unavoidable circumstances. As such, in the interest of justice, this Hon'ble Court may be pleased to condoned the delay occurred in filing the revision petition."

The cause shown in the application, if we may say so, is not

at all satisfactory. In-fact, there is no cause at all shown as to why

such long delay occurred. The defects pointed out by the office are

also not removed.

In two recent judicial pronouncements, their Lordships of the

Hon'ble Supreme Court have deprecated this practice on the part

of the State authorities in taking the remedy of appeal after long

and undue delay.

(3 of 6) [STR-24/2018]

In the case of State of Madhya Pradesh & Ors. V.

Bherulal, 2020 SCC Online SC 849, it was found that the

appeal filed by the State was with delay of 663 days. The cause

shown for inordinate delay in that case was due to unavailability of

documents and the process of arranging documents and also a

reference to bureaucratic process works. In the aforesaid factual

context, Their Lordships of the Supreme Court, referring to its

earlier decision, observed as below-

"3. No doubt, some leeway is given for the Government inefficiencies but the sad part is that the authorities 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 & Anr vs. Mst. Katiji & Ors. (1987) 2 SCC 107). This position is more than elucidated by the judgment of this Court in Office of the Chief Post Master General & Ors. v. Living Media India Ltd. & Anr. (2012) 3 SCC 563 where the Court observed as under:

"12) 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.

(4 of 6) [STR-24/2018]

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 bonafide, 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.

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 redtape 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." Eight years hence the judgment is still unheeded!"

                                              (5 of 6)                        [STR-24/2018]



     In another decision, in the case of                          Government of

Maharashtra (Water Resources Department) V. M/s. Borse

Brothers Engineers and Contractors Pvt. Ltd., 2021 SCC

Online SC 233 also, in the factual context of long delay of 75

days, the explanation was found to be short of any sufficient

cause. The explanation in the aforesaid case was noted in para 65

of the said judgment as below -

"65. That apart, on the facts of this appeal, there is a long delay of 75 days beyond the period of 60 days provided by the Commercial Courts Act. Despite the fact that a certified copy of the District Court's judgment was obtained by the respondent on 27.04.2019, the appeal was filed only on 09.09.2019, the explanation for delay being:

"2. That, the certified copy of the order dated 01/04/2013 was received by the appellant on 27/04/2019. Thereafter the matter was placed before the CGM purchase MPPKVVCL for the compliance of the order. The same was then sent to the law officer, MPPKVVCL for opinion.

3. That after taking opinion for appeal, and approval of the concerned authorities, the officerin-charge was appointed vide order dated 23/07/2019.

4. That, thereafter due to bulky records of the case and for procurement of the necessary documents some delay has been caused however, the appeal has been prepared and filed to pursuant to the same and further delay.

5. That due to the aforesaid procedural approval and since the appellant is a public entity formed under the Energy department of the State

(6 of 6) [STR-24/2018]

Government, the delay caused in filing the appeal is bonafide and which deserve[s] to be condoned."

However, the Hon'ble Supreme Court was not satisfied with

the cause shown on the above lines and it was held as below :

"66. This explanation falls woefully short of making out any sufficient cause. This appeal is therefore allowed and the condonation of delay is set aside on this score also."

In view of the above, application under Section 5 of the

Limitation Act is dismissed.

Consequently, the instant Sales Tax Ref./rev. is dismissed as

barred by limitation.

(VINOD KUMAR BHARWANI),J (SANDEEP MEHTA),J

14-Mamta/-

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