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2016 (7) TMI 993 - BOMBAY HIGH COURT

2016 (7) TMI 993 - BOMBAY HIGH COURT - [2016] 93 VST 387 (Bom) - Condonation of delay - 548 days in preferring the Appeals - Revenue appeal - Held that:- Merely because applicant is a State, delay cannot be condoned without a proper explanation as Section 5 of the Limitation Act is equally applicable to the State as well. - In the instant case, there is absolutely no averment in the Notices of Motion or even in the submissions as to which were those peculiar or distinctive aspects of the Go .....

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ternal correspondence are given and the cause is attributed to the same and also to the fact that the Special Leave Petition was preferred in the Hon'ble Supreme Court of India against the order of the Tribunal and hence there was delay, we are not at all convinced by the same. - It is pertinent to note that the impugned decision of the Tribunal is dated 19th June 2009 and the Special Leave Petition was disposed of on 7th February 2011 itself. The Appeals are, however, preferred on 3rd Febr .....

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self. The Draft Appeal received approval thereafter from the concerned Department on 16th December 2015. No explanation at all is offered for this delay of four years and the subsequent delay of again about two months in preferring this Appeal with Notice of Motion. Such a delay cannot be condoned on the spacious plea of the characteristics of Government functioning. - NOTICE OF MOTION NO.891 OF 2016 IN MVAT APPEAL (LODGING) NO.10 OF 2016, VAT SECOND APPEAL NO.119 OF 2013 ALONG WITH NOTICE OF MO .....

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dent in Notice of Motion No.1007 of 2016. JUDGMENT : [Per Dr. Shalini Phansalkar-Joshi, J.] 1. These three Notices of Motion are preferred by the Revenue seeking condonation of delay in preferring appeals under Section 27 of the Maharashtra Value Added Tax Act, 2002, against the Judgment and Order of the First Bench of Maharashtra Sales Tax Tribunal, Mumbai. As they raise the common questions of law and facts, they are being decided by this common order. 2. The f .....

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umbai. It is in VAT Appeal No.9 of 2007 and the delay in this case is of about 2288 days. 3. In the first two Notices of Motion, the cause for the delay is given in a general and omnibus way as stating that, "the delay is due to various factum, especially, related to procedural mandate in Government functioning, which were not in the control of the Applicant-Appellant"; whereas, in the third Notice of Motion, the delay is attributed to filing of the Special Leave Petition in .....

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eedings under the Maharashtra Value Added Tax Act, 2002. To advance this submission, the reliance is placed on the Judgment of this Court in Additional Commissioner of Sales Tax, VAT-III, Mumbai Vs. Jonson and Jonson Ltd. & Anr. (2015) 79 VST 478 (Bom). 5. The second ground, on which the Notices of Motion for condonation of delay are opposed, is the failure of the Applicant-Appellant to make out sufficient cause for condonation of such long duration of about two years in the firs .....

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Respondents, therefore, this belated wisdom dawn on the Revenue, of challenging the impugned orders of the Tribunal, is required to be dealt with strictly, especially, in the case of Revenue matters, where such causes are taken up after the long period of years together. It is submitted that the delay in Revenue matters adversely affects the steady inflow of revenues and the financial stability of the State. Therefore, when the object is to ensure speedy and final determination of fiscal matters .....

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r our consideration is about the maintainability of these Notices of Motion or applications for condonation of delay in preferring the Appeals, as learned counsel for the Respondents has strenuously contested the same by relying upon the decision of this Court in Jonson and Jonson Ltd. (Supra). According to learned counsel for the Respondents, the application of the provisions of the Limitation Act to the proceedings in the Sales Tax matters is very much restricted. In the absence of any express .....

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e to the High Court from every order passed by the Tribunal, including a Judgment, by way of advance ruling, if the High Court is satisfied that the case involves a substantial question of law. 9. Sub-section 2(a) to Section 27 provides that such appeal has to be filed within the period of one hundred and twenty days from the date on which the order appealed against is received by the party. 10. Sub-section (9) of Section 27 of the said Act lays down that, save as otherwis .....

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sion of period of limitation in certain cases. Sub-clause (1) of Section 81 reads as follows :- "An appellate authority may admit an appeal under Section 26 after the period of limitation laid down in the said section, if the appellant satisfies the appellate authority that he had sufficient cause for not preferring the appeal within such period." 13. Thus, the provisions of this Section are clear to the effect that the Appellate Authority under Section 26 of the .....

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dure, 1908 in so far as relating to Appeals applies to the subject Appeals, then, it is rightly conceded that this Court can condone the delay in filing Second Appeals. The provisions in so far as maintainability of the Second Appeals in this Court applies to the MVAT Appeals in this Court. Therefore, Order XLI Rule 3A of CPC would apply conferring power in this Court to condone the delay in filing MVAT Appeals beyond the prescribed period. 14. As to the authority relied upon by lear .....

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imitation Act. As the Section makes it clear that the Court has to abide by the limit of 90 days and if the application is filed beyond that period, the Court has no powers to condone the delay by taking recourse to Section 5 of the Limitation Act. 15. It was observed that, the authorities constituted under the Sales Tax Act for deciding the tax dues are not courts, but Tribunals and unless there is an express power conferred by the Act to condone the delay or exclude any .....

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17. Thus, it is clear that these observations are made in the context of and pertaining to the 'Reference', which the Tribunal has to make within a particular time period and Tribunal, not being a court, had no authority or powers to extend such period of limitation. In consequence, the High Court was also held to be not having such power to entertain the Reference beyond the period of limitation, prescribed by Section 61 of the Bombay Sales Tax Act, 1959. 18. As against it, .....

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ay are concerned, we have to hold that they are very much maintainable. 19. However, the mere fact that the Notices of Motion are maintainable, does not mean that they have to be allowed. After all, this Court also has to consider whether 'sufficient cause', which is the essential condition or one may call a sine qua non, for allowing such applications for condonation of delay is made out by the Applicant-Appellant or not. 20. For the Court to exercise its discreti .....

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preferring the Appeals. In Para No.4 of the applications / first two Notices of Motion, it is stated as follows :- 4. I say that the delay in filing the present Appeal is not deliberate or intentional but due to various factors, especially related to procedural mandate in Government functioning, which were not in control of the Appellant. 22. Thus, absolutely no cause is given, as such, for condonation of delay and that of about 548 days in preferring the Appeals, except .....

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y the Apex Court in the case of G. Ramegauda Major etc. Vs. The Special Land Acquisition Officer, along with connected matter, Bangalore AIR 1988 SC 897, that, in assessing, what in a particular case can constitute 'sufficient cause', for the purpose of Section 5 of the Limitation Act, it might be unrealistic to exclude the consideration of the characteristics of the decisions taken at the Government level and the aspects which are peculiar to the functioning of the Government.

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aid by the State vis-a-vis private litigant could be laid to prove sufficient cause. Merely because applicant is a State, delay cannot be condoned without a proper explanation as Section 5 of the Limitation Act is equally applicable to the State as well. 25. In the case of Office of the Chief Post Master General & Ors. Vs. Living Media India Ltd. & Anr. 2012 AIR SCW 1812, the Apex Court, after taking review of its earlier decisions, was constrained to observe that, .....

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f 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 instrumentalitie .....

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overnment 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. Accordingly, the appeals are liable to be dismissed on the ground of delay. 26. It has, thus, to .....

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ment functioning, which resulted in causing delay of about two years in preferring these appeals. Therefore, having regard to the tenor of the averments in the application, we have no hesitation in our mind to reject these first two Notices of Motion on failure of the Applicant-Appellants to bring their case within the four corners of 'sufficient cause', as contemplated under Section 5 of the Limitation Act. 28. Even as regards the third Notice of Motion, though the details of the variou .....

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