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2015 (6) TMI 48 - BOMBAY HIGH COURT

2015 (6) TMI 48 - BOMBAY HIGH COURT - [2015] 86 VST 414 (Bom) - Condonation of delay - Bonafide belief - Withdrawal of appeals - Clubbing of appeals - Held that:- Contention of the petitioners that they were under bonafide belief that the appeal is still pending stands fortified from the facts narrated hereiabove and from the affidavits placed on record. It is further to be noted that though the petitioners had requested for withdrawal of appeal in part, the Appellate Authority erroneously dismi .....

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o the affidavit filed on behalf of the appellant, was assured to be corrected by him, but however not corrected by him, a prejudice cannot be permitted to be caused to a litigant who was acting bonafide - petitioners have made out a case of sufficient cause and as such, have made out a case for condonation of delay. However, the same shall be subject to costs which are quantified at ₹ 10,000 - Decided partly in favour of assessee. - Writ Petition No. 2774 of 2014 - Dated:- 28-4-2015 - B. R .....

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titioners for condonation of delay and also consequently, dismissing the Second Appeal. 3. The facts, in brief, giving rise to the present petition, are as under :- (a) The petitioner, which is a Company duly registered under the provisions of the Companies Act, is registered under the provisions of the Bombay Sales Act, 1959 (hereinafter referred to as "the said Act", for short) and the Central Sales Tax Act, 1956 (hereinafter referred to as "the Central Act" for short). (b) .....

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oner had got administrative relief. However, it appears that vide the order dated 20.6.2000, all the appeals of the assess for various periods were clubbed by the Appellate Authority with the appeals for Assessment Year 1992-93 and thereby dismissed all the appeals as withdrawn. It is the contention of the petitioners that they were under an impression that the appeal is only partly disposed off and the appeal still remains pending before the first Appellate Authority insofar as the part of the .....

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filed has also been dismissed. Hence, the present petition. 4. Smt.Badheka,the learned counsel appearing for the petitioners submits that the petitioners were under bonafide impression that the appeal was only partly withdrawn and was pending in part. The learned counsel submits that one Shri Himanshu Kothari, who is consultant of the petitioners had advised the petitioners that the appeal is pending in part and as such, the petitioners were not aware that the appeal was dismissed in entirety, .....

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other demand notice in March 2010, an enquiry was made wherein it was found that the appeal was dismissed in entirety. It is submitted that in these circumstances, the Second Appeal and the application, as aforesaid, came to be filed. 5. Smt. Badheka learned counsel appearing on behalf of the petitioners submits that the learned Tribunal has erred in dismissing the application for condonation of delay and, consequently, dismissing the Second Appeal. She submits that merely because there is delay .....

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under bonafide impression that the appeal was still pending in part and as such, ought to have taken a liberal view. It is submitted that Mr. Kothari had also given details regarding his wife's illness who was suffering from various ailments. She further submits that the petitioners had further stated that one Mr. Mehboob Punjnani,who was an employee of the appellant and was looking after the said matter had also left the services of the appellant in or around 2005. She further submits that .....

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ioners were not at all diligent in prosecuting the matter. She submits that the learned Tribunal has correctly applied the law and found that no case for condonation of delay is made out. The learned counsel, therefore, submits that the petition deserves to be dismissed. 7. By now, it is settled principles of law that the period of delay is not relevant for considering the application for condonation of delay. What is required to be seen is as to whether a party seeking condonation of delay has .....

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titioners before the First Appellate Authority. It can also be seen that when the administrative relief order was passed on 27.1.2000, a part of the claim of the petitioner stood satisfied. As such, an application came to be filed by the petitioners on 22.2.2000. It will be relevant to refer to the following portion of the letter dated 22.2.2000 :- "(ii) In view of the above, we hereby withdraw the Point of Objection and Grounds of Appeal relating to calculation of CQB. (iii) However, the o .....

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irst Appellate Authority, since there was a bunch of appeals, decided all the appeals and dismissed all of them as withdrawn along with the present appeal. 10. An affidavit has been filed before the learned Tribunal by Shri Kothari who was consultant. He has stated that after the order was passed by the appellate Authority, he had approached the Appellate Authority and informed that the request made by the petitioners for withdrawal of appeal was only in part. He has stated that the learned Depu .....

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r stated that after the reply was sent, there was no further communication for the period of almost three years and after three years in 2010, another demand was issued. It is stated that at this point of time, the petitioners realized that there was something which required immediate action and as such upon consulting a lawyer, it was decided to file Second Appeal along with an application for condonation of delay. 11. As already discussed hereinabove, the letter requesting the Appellate Author .....

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d would do necessary correction. It is further evident that after receipt of the communication dated 24.4.2007 demanding the amount for the aforesaid assessment year, a reply was immediately sent by the petitioners on 7.5.2007 to the Respondent-Authority, wherein again it was specifically stated that the appeal is still pending and the petitioner was waiting for the final hearing. On a specific query as to whether the said letter is replied to the petitioners, Smt. Helekar, the learned AGP for t .....

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length of delay is not relevant. What is relevant is as to whether a party has made out a case of sufficient cause or not. The letter requesting withdrawal categorically states withdrawal of the appeal is only for a claim in respect of which the administrative relief has been given to the petitioner. No doubt that the order disposing of the appeal states that Appeal has been withdrawn in toto. However, Shri Kothari categorically stated in his affidavit that he had brought the errors to the notic .....

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