TMI Blog2012 (9) TMI 888X X X X Extracts X X X X X X X X Extracts X X X X ..... n March 17, 2011 when the matter was considered. The reliance of the petitioner-company on reply filed by the State Reported as Binani Cement Limited. v. State of Rajasthan [2001 (7) TMI 1260 - RAJASTHAN HIGH COURT]. is also of no avail. It is trite that an admission has to be unequivocal to be relied upon. A perusal of the reply filed by the State shows that the State had completely and unambiguously denied the receipt of the application for review dated December 13, 2000 by the SLSC or the Industries Department. The order of this court Reported as Binani Cement Limited. v. State of Rajasthan [2001 (7) TMI 1260 - RAJASTHAN HIGH COURT] contained no direction to the Tax Board to condone the delay for the whole period of 11 years, but was confined to the petitioner-company's entitlement for condonation of delay from May 21, 2008 to September 5, 2011. For the remainder period from October 21, 2000 to May 21, 2008, the burden was on the petitioner-company to satisfy the Tax Board that it had sufficient cause for filing an inordinately delayed appeal against the SLSC's order dated October 21, 2000 on September 16, 2011, and for hearing the appeal on the merits. The findings of the Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 532.52 crores. In the first instance the SLSC vide order dated January 15, 1998 accepted EFCI only to an extent of ₹ 55.35 crores, further holding that the petitioner-company was entitled to an exemption of 25 per cent of its tax liability for a period of seven years. Dissatisfied with the order dated January 15, 1998, passed by the SLSC, the petitioner-company filed a review petition before the SLSC in terms of clause 5A of the 1989 Scheme against the decision dated January 15, 1998 claiming EFCI of ₹ 396.72 crores and percentage exemption on tax at 75 per cent based on a circular dated October 12, 1995 relevant to the 1989 Scheme as issued by the Director, Industries Department, Government of Rajasthan. An appeal was also simultaneously filed with reference to clause 6 of the 1989 Scheme by the petitioner-company before the Tax Board against the aforesaid order dated January 15, 1998 passed by the SLSC. The Board allowed the appeal under its order dated December 18, 1998 holding that the company was entitled to 75 per cent exemption on tax on approved EFCI and remanded the matter for consideration by the SLSC on due EFCI. The SLSC thereafter vide its order dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dismissed by the Tax Board. The Tax Board has held that from the record before it, the application for condonation of delay was liable to be dismissed in view of the fact that even while the petitioner-company had been able to explain the delay in filing the appeal on September 16, 2011 since May 21, 2008 when Writ Petition No. 5167 of 2008 was filed before the High Court till dismissal thereof on September 5, 2011 Reported as Binani Cement Limited. v. State of Rajasthan [2013] 57 VST 129 (Raj). (with liberty to file an appeal and seek condonation of delay in filing thereof for the pendency of the period of the pendency of the writ before the High Court), for the period November 20, 2000 (when SLSC order dated October 21, 2000 was conveyed) to May 21, 2008 there was no credible explanation to make out sufficient cause for condonation of delay in filing the appeal. So holding vide order dated October 24, 2011, the Board has dismissed the appeal filed by the petitioner-company. Hence this revision petition under section 84(1) of the VAT Act read with section 86 of the 1994 Act against the order dated October 24, 2011 passed by the Board. Heard Mr. Sudhir Gupta, learned senior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 13, 2000 before the SLSC-albeit not addressed to the SLSC but purportedly to the Principal Secretary, Industries, who was the ex officio Chairman of the SLSC. On December 1, 2006, the petitioner-company states to have submitted a representation before the Commissioner Industries-Member Secretary SLSC inviting his attention to petitionercompany's alleged representation/review and requesting that the SLSC consider the case of the petitioner-company sympathetically and enhance the EFCI as claimed. It is submitted that along with the representation dated December 1, 2006 copy of the earlier application for review purportedly filed on December 13, 2000 was annexed, albeit no reference to the application dated December 13, 2000 was made in the body of the representation dated December 1, 2006. In response to representation dated December 1, 2006, the Commissioner Industries-Member Secretary SLSC vide his letter dated February 8, 2007 informed the petitioner-company that the application for review/ re-consideration having been submitted beyond 60 days of the order dated October 21, 2000, it could not be considered. The case of the petitioner-company is that vide its letter dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the SLSC dated October 21, 2000, the respondents continued to dither and delay addressing the said review petition in spite of the petitioner-company's reminders dated December 1, 2006, March 8, 2007, March 7, 2008 and May 13, 2008. According to the petitioner-company's case, the non-address of its review application dated December 13, 2000 entailed its deemed acceptance resulting in a crystallised claim to an EFCI of 396.72 crores. In the aforesaid context the petitioner-company claimed that the demand notice, for payment of tax overlooking deemed to be approved EFCI and the exemption due under the Incentive Scheme, 1989 was liable to be quashed. The petitioner-company states that the Department accepted in its reply to Writ Petition No. 5167 of 20081 that the application for review the order dated October 21, 2000 passed by the SLSC was indeed filed on December 13, 2000. For this purpose in the present proceedings reliance has been placed on paras 5, 6 and 7 of the reply to Writ Petition No. 5167 of 20081 by the State. For the facility of ready reference the paras 7 and 8 of the reply to writ petition filed by respondent-State are reproduced hereunder: 7. That aggri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if aggrieved, was left with only option to approach the appellate authority, i.e., the Rajasthan Tax Board. It is submitted that during pendency of Writ Petition No. 5167 of 2008 Reported as Binani Cement Limited. v. State of Rajasthan [2013] 57 VST 129 (Raj)., the Joint Director Industries issued a notice to the petitioner-company calling upon it to avail of a personal hearing on its alleged claim for enhanced EFCI under the 1989 Scheme. It is stated that in response to notices dated February 24, 2011 and March 4, 2011 in this regard, the representatives of the petitioner-company appeared before the SLSC seeking to agitate the company's claim for enhancement/revision of EFCI beyond ₹ 280.47 crores as per their reading of the 1989 Scheme with the Government Circular dated August 3, 1999. It is submitted that however overlooking the purported admission of the receipt of the application for review dated December 13, 2000 in the reply to Writ Petition No. 5167 of 2008 Reported as Binani Cement Limited. v. State of Rajasthan [2013] 57 VST 129 (Raj)., the SLSC required the petitioner-company to produce any receipt or acknowledgment or any other proof of review application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19, 2011 stating that in the facts as they then transpired, relief prayed in the writ petition premised on the purported undecided application for review filed allegedly on December 13, 2000 could not be granted and consequently the writ petition filed by the petitioner-company be dismissed as infructuous. Writ Petition No. 5167 of 2008 Reported as Binani Cement Limited. v. State of Rajasthan [2013] 57 VST 129 (Raj). was thereupon taken up by this court for hearing on September 5, 2011. The learned judge took a view that in the facts of the case as then obtained before him there was no merit in the writ petition and the writ petition was liable to be dismissed. The learned single judge rejected the case of the petitioner-company claiming deemed acceptance of its review application in view of no such deeming provision having been provided for in the 1989 Scheme. The court appeared to take the view that for whatever be the truth of the filing of the application of review on December 13, 2000 (as claimed), it could in no event be addressed in the year 2011 because under the 1989 Scheme, the SLSC when not deciding a review application within 180 days of its receipt was rendered func ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2011 before the Division Bench of the Board, for hearing. The case of the petitioner-company before the Board was that the objection with regard to limitation in filing of the appeal under clause 6 of the Incentive Scheme, 1989 against the SLSC's order dated October 21, 2000 was not maintainable in view of the direction passed by this court on September 5, 2011 Reported as Binani Cement Limited. v. State of Rajasthan [2013] 57 VST 129 (Raj). in Writ Petition No. 5167 of 2008, wherein it was stated that the petitioner-company in the event of filing an appeal before the Tax Board would be entitled for condonation of delay for the period of pendency of the writ petition before the High Court. It was submitted that the petitioner-company was entitled to condonation of delay on this count alone and hearing on the question of limitation on the application for condonation of delay was absolutely unwarranted and contrary to the spirit of the order dated September 5, 20111 in Writ Petition No. 5167 of 2008. Alternatively it was submitted on behalf of the petitioner-company that the order dated October 21, 2000, passed by the SLSC had been put up for reconsideration/review with refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... else the petitioner-company would suffer grave irreparable loss on count of its remedy against a very substantial injustice being foreclosed. Per contra, on behalf of the State it was submitted that the appeal filed on September 16, 2011 against the order dated October 21, 2000, as conveyed under covering letter dated November 20, 2000 had been filed after an inordinate delay of 11 years, of which only the period May 21, 2008 to September 5, 2011 when the matter was pending in Writ Petition No. 5167 of 2008 Reported as Binani Cement Limited. v. State of Rajasthan [2013] 57 VST 129 (Raj). could be condoned under orders of the High Court. It was submitted that under the 1989 Scheme any aggrieved person was to lay an appeal against an order of SLSC within a period of sixty days of communication of such order. It was submitted that the SLSC had taken the decision on October 21, 2000 that the petitioner-company was entitled only to EFCI of ₹ 280.47 crores, and the said order was conveyed to the petitioner-company by a letter dated November 20, 2000 under registered post receipt of which has not been denied. It was submitted that the case set up by the petitioner-company (appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 1989 Scheme, it was not deserving of consideration. It was further submitted that the order dated February 8, 2007 would have on its own also occasioned a clear cut cause of action to the petitioner-company to take its remedy by way of an appeal under clause 6 of the Incentive Scheme, 1989 before the Board, and yet admittedly no such resort was taken against the communication dated February 8, 2007. It was submitted that in the obtaining circumstances, the petitioner-company had not been able to make out a sufficient cause whatsoever for condonation of about seven year delay in filing the appeal, consequent to which the application for condonation of delay in filing the appeal was liable to be dismissed appeal held to be not maintainable and thereupon dismissed. On consideration of the matter on the submission of counsel for the parties as also perusal of the record of the SLSC, the Board came to a finding of fact that no application for reconsideration of the order dated October 21, 2000, as claimed by the petitioner-company, was filed on December 13, 2000. The Board also noticed the fact that the SLSC in its meeting of March 17, 2011, result whereof was communicated to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd is liable to be quashed and set aside by this court as the said order is erroneous, arbitrary, perverse and more importantly in defiance and contrary to the directions of this court in Writ Petition No. 5167 of 2008 Reported as Binani Cement Limited. v. State of Rajasthan [2013] 57 VST 129 (Raj). decided on September 5, 2011. It is submitted that the honourable apex court and this court have consistently held that a liberal approach should be adopted while considering applications for condonation of delay as the object of administration of justice is adjudication on merits of the matter and not denial of the petitioner's rights on technical/procedural grounds resulting from invoking limitation. It is submitted that the petitioner-company had placed before the Tax Board all requisite record and material and duly demonstrated that the delay in filing of appeal against the order dated October 21, 2000 was not mala fide, deliberate or intentional, but ex facie bona fide occasioned entirely on account of pendency of proceedings, first before the SLSC under application for review filed on December 13, 2000 and thereafter a writ before this court which was numbered 5167 of 2008. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt has held that the expression sufficient cause is adequately elastic to facilitate the courts to apply the law in a meaningful manner to subserve the ends of justice. Expounding on the need to take a liberal view in construing sufficient cause it has been held that the courts should exercise their discretion liberally to condone the delay in filing appeal, because refusing to condone delay could result in a meritorious matter being thrown out at the very threshold and the cause of justice being defeated. It is submitted that the honourable Supreme Court has also held that where substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred as the party opposing the application for condonation of delay does not have a vested right in injustice being done. Cases of deliberate and inordinate delay may however be excepted cases. It has been submitted that the honourable apex court has held that there can be no presumption in a delayed availing of a remedy by a litigant, or the appellant's culpable negligence, or for that matter mala fides, as the litigant does not stand to benefit from such action. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of fact that no application under clause 5A of the 1989 Scheme for review of the order dated October 21, 2000 was ever filed by the petitioner-company. It has been further submitted that contrary to the petitioner-company's case that the State had admitted to the filing of application for review on December 13, 2000 in its reply to Writ Petition No. 5167 of 2008, a holistic reading of the reply would indicate that on the contrary the State had specifically denied the filing of any such review application on December 13, 2000. Learned Advocate-General further submitted that in reply to Writ Petition No. 5167 of 2008 Reported as Binani Cement Limited. v. State of Rajasthan [2013] 57 VST 129 (Raj). decided by this court under order dated September 5, 2011, it has been specifically mentioned that the purported application December 13, 2000 for review of the order dated October 21, 2000 was not addressed to the Commissioner Industries, who was the Member Secretary of the SLSC and even assuming that the purported application allegedly filed on December 13, 2000 was addressed to the Secretary Industries (which was denied in para 20 of the reply) it was not at all on its face a revie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no occasion for the SLSC to adjudicate upon the said representation/application dated December 13, 2000. It has been further submitted that thereafter the SLSC in its meeting dated March 17, 2011 (occasioned by allegations in Writ Petition No. 5167 of 2008 Reported as Binani Cement Limited. v. State of Rajasthan [2013] 57 VST 129 (Raj). about filing of a purported review application dated December 13, 2000) had specifically asked the petitioner-company for any proof available with it of having submitted the application dated December 13, 2000, but the representative of the petitioner-company had failed to submit such receipt or proof of submitting the alleged review application dated December 13, 2000. The learned Advocate-General has then submitted that indeed a letter dated December 13, 2000 was received by the Secretary, Industries, Government of Rajasthan, copy whereof was endorsed to Secretary, Finance, Government of Rajasthan and Special Secretary, Finance, which however pertained to another issue and was with regard to giving effect to judgment of Tax Board dated December 18, 1998 pertaining to the entitlement of petitioner-company to 75 per cent tax exemption on the EF ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd it was addressed to the Commissioner Industries-Member Secretary, SLSC. In the aforesaid facts, the learned Advocate-General has submitted that while both before December 13, 2000 and after December 13, 2000 proper review applications with reference to clause 5A of the 1989 Scheme were filed before the Commissioner Industries-cum-Member Secretary, SLSC, it is inconceivable that in respect of the alleged application dated December 13, 2000, neither any proper reference was made to clause 5A of the 1989 Scheme, nor was it addressed to the Commissioner Industries-cumMember Secretary, SLSC, but to the Secretary Industries, Government of Rajasthan-as claimed falsely by the petitioner-company. The learned Advocate-General further submitted that for a company as litigious as the petitioner-company, as evident from several review applications/appeal filed by it since 1998 under the 1989 Scheme, it should also inconceivable for this court to imagine that, in the normal course of human conduct, the purported application for review dated December 13, 2000 seeking EFCI enhancement of crores of rupees would not be pursued by the petitioner-company for a period of about 6 years till Decemb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on under clause 5A of the 1989 Scheme on December 13, 2000. It is submitted that similarly the conclusion of the Tax Board that from the record of SLSC no application for review under clause 5A of the 1989 Scheme appeared to have been filed was also a finding of fact based on record of the case and in the exercise of limited revising power statutorily confined to questions of law, this court ought not to interfere in the impugned findings of fact as to lack and absence of sufficient cause arrived at by the Tax Board in its impugned order dated October 24, 2011. The learned Advocate-General has also further relied upon a judgment in the case of Binod Bihari Singh v. Union of India [1993] 1 SCC 572 wherein the honourable apex court has held that even though it may not be desirable for the Government or the public authority to take shelter under the plea of limitation to defeat a just claim of a citizen, yet where a claim is barred by limitation and such plea is raised specifically, the said plea cannot be ignored by the court on the ground that such plea is ignoble. It is submitted that the honourable apex court has held that the bar of limitation may be considered even if such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Scheme for review of order dated October 21, 2000 passed by the SLSC was indeed filed by the petitioner-company on December 13, 2000. The lynchpin argument of petitioner-company lies in the purported admission by the respondent-State to the factum of the filing application for review on December 13, 2000 in its reply to Writ Petition No. 5167 of 2008 Reported as Binani Cement Limited. v. State of Rajasthan [2013] 57 VST 129 (Raj).. The revision petition substantially turns on the determination of the question as to whether the order dated October 24, 2011, passed by the Tax Board coming to a finding of fact with regard to non-filing of application December 13, 2000 is perverse and/or suffers from a misdirection in law entailing a question of law for determination in the present revision petition under section 84(1) of the Rajasthan Value Added Tax Act read with section 86 of the Rajasthan Sales Tax Act. In my considered opinion there is no material before this court to come to the conclusion that the order dated October 24, 2011, is a perverse order or vitiated by a misdirection in law entailing a question of law to be determined in the present revision petition. The issue of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f of filing of application on December 13, 2000. Escape from the obligation to produce the best evidence is sought on the pretext of the SLSC never giving receipts of application filed before it. That however is a tenuous argument at the company's own peril. More importantly this court cannot overlook the fact that the petitioner-company had filed at least two applications for review before the SLSC in 1998 whereunder it had addressed the applications such as on April 15, 1998 and October 12, 1998 (annexures RA-6 and RA-7 to the affidavit of Omkar Singh Ashiya) to the Commissioner Industries-cum Member Secretary, SLSC and made specific reference to clause 5A of the 1989 Scheme. However the purported application dated December 13, 2000 for review was oddly addressed to the Secretary Industries not the Member Secretary, SLSC and even makes no reference to clause 5A of the 1989 Scheme. Further detrimental to the petitioner-company's case is the factum of complete quietude of the petitioner-company for a period of about six years till December 1, 2006 thereafter. No attempt was made to pursue the purported application filed on December 13, 2000 by the petitioner-company. This d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. There was no direction from the learned Single Judge to condone whole of the delay. The matter was to be considered by the Board on its own facts and supporting material. In my considered opinion the public policy underlying the Limitation Act, 1963 has to be respected and upheld. Section 3 of the Act aforesaid specifically provides that every suit instituted or appeal preferred after the prescribed period of limitation should be dismissed, even where limitation has not been advanced as a defence. Escape from the otherwise inexorable effect of section 3 of the 1963 Act lies in section 5 thereof, which, inter alia, provides that appeals may be admitted after the prescribed period if the appellant satisfies the court that he had sufficient cause for not preferring the appeal within time prescribed. The honourable apex court and various High Courts including this court have held that exercise of power under section 5 of the Limitation Act is a matter of discretion of the court, even when sufficient cause for delay in filing of appeal has been explained. But before the question of the exercise of discretion by the courts arises on an application under section 5 of the 1963 Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same relief. The question however remains as to whether the petitioner-company was able to set up a case before the Tax Board for condonation of delay beyond the period of 60 days following the receipt of SLSC's order dated October 21, 2000 till filing of Writ Petition No. 5167 of 2008 Reported as Binani Cement Limited. v. State of Rajasthan [2013] 57 VST 129 (Raj). on May 21, 2008. As has been noticed above, the petitioner-company states that it has no proof of filing of review application on December 13, 2000. This admission is fundamentally destructive of the petitioner's case for condonation of delay of about seven years till filing of the Writ Petition No. 5167 of 2008 Reported as Binani Cement Limited. v. State of Rajasthan [2013] 57 VST 129 (Raj). on May 21, 2008. Another arrow to the petitioner's bow string to support its case of an application for review having been filed on December 13, 2000 was reliance on the reply of the State to writ petition where the State purportedly admitted the filing of such an application. This is also without foundation. A perusal of the reply to the Writ Petition No. 5167 of 2008 Reported as Binani Cement Limited. v. State of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oy unlimited and unbridled discretionary powers and the discretion has to be exercised within reasonable bounds. It has been further held that the discretion under section 5 of the Limitation Act has to be systematically exercised duly informed by reasons and where whims or fancies, prejudices or predilections cannot and should not form the basis of exercising the discretionary powers to condone delay. In the case of Oriental Aroma Chemical Industries Limited v. Gujarat Industrial Development Corporation [2010] 5 SCC 459, the honourable Supreme Court has held that even while a liberal approach is desirable in condoning the delay of short duration, stricter approach is required to be applied in cases of inordinate delay. Finally in view of the observations of the honourable Supreme Court in the case of Binod Bihari Singh [1993] 1 SCC 572, I find that as the petitioner-company to overcome a bar of limitation appears to have taken a false stand of filing review application on December 13, 2000, the application for condonation of delay deserved dismissal. In my considered opinion, even otherwise in view of overall facts of the case this court can't find any perversity in the impu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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