TMI Blog2016 (10) TMI 856X X X X Extracts X X X X X X X X Extracts X X X X ..... 7) TMI 21 - SUPREME COURT] relied upon where it was held that this Court rejected the contention that a petition should be considered ignoring the delay and laches on the ground that he filed the petition just after coming to know of the relief granted by the Court in a similar case as the same cannot furnish a proper explanation for delay and laches. The Court observed that such a plea is wholly unjustified and cannot furnish any ground for ignoring delay and laches. Delay cannot be condoned - petition dismissed. - SPECIAL CIVIL APPLICATION NO. 12666 of 2016 - - - Dated:- 17-10-2016 - MR. AKIL KURESHI AND MR. A.J. SHASTRI, JJ. FOR THE PETITIONER : UCHIT N SHETH, ADVOCATE FOR THE RESPONDENT : ADVANCE COPY SERVED TO GP/PP (PER : HONOURABLE MR.JUSTICE A.J. SHASTRI) 1. The present petition is filed for the purpose of challenging the legality and validity of an order dated 05.11.2015 passed by the learned Tribunal whereby the appeal filed by the petitioner came to be dismissed on the ground of delay and laches. 2. Brief facts are as under: Petitioner No.1 is a registered dealer under the provisions of Gujarat Value Added Tax Act, 2003 ['the Act' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t there is no option but to challenge the same by way of filing first appeal. As such the petitioner had filed first appeal before the Deputy Commissioner of Commercial Tax, who, while entertaining first appeal, directed the petitioner to make a payment of ₹ 50,27,932/- as predeposit to entertain the first appeal. Since there was no money, the said first appeal came to be dismissed summarily vide order dated 09.03.2010 for want of payment of pre-deposit. 5. The petitioner against the said order of first appeal had filed second appeal before the learned VAT Tribunal. The Tribunal by treating the payment of ₹ 25,000/-, which was made at the time of seeking registration and later on amount of ₹ 3,82,085/- which was coercively recovered from the bank accounts, as the payment of deposit and the second appeal came to be admitted. In the meantime, the Assessing Officer has proceeded with regular assessment and passed a final order of assessment by raising a demand of ₹ 1,93,82,795/- which of course inclusive of the amount determined in the provisional assessment order. However, final assessment order by disallowing input tax credit of the petitioner came to be p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight as stated here-inabove and requested that there was no mala fide intent in not approaching within time and there was no fault on part of the petitioner. It is on account of non-availability of information as well as the order of first appeal, the second appeal could not be filed. Therefore, he requested the Tribunal to condone the delay. However, the learned Tribunal considering the entire material on record found that there is no cogent explanation tendered by the petitioner and after considering the conduct of the petitioner, the second appeal came to be dismissed by not condoning delay vide order dated 05.11.2015 and it is against this order passed by the learned Tribunal after almost a period of eight months, the present petition appears to have been filed on 21.07.2016. 9. Learned advocate Mr. Uchit Sheth on behalf of the petitioner has submitted that the petitioner has received the knowledge of dismissal of first appeal against the regular assessment order only when his client has received the recovery proceedings in the form of notice of demand and no copy of the order of first appeal has ever been received by the petitioner. It was also submitted by the counsel that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion which has been put forth by the petitioner is not genuine. The learned AGP has further contended that the very fact that though the petitioner was aware about the fact that during the pendency of second appeal, final assessment order has already been passed, the same was not disclosed before the Tribunal and therefore, this very conduct smacks mala fides. The innocence which is tried to be projected is not appearing to be genuine. The learned AGP has contended that enormous delay has not been cogently explained. It has also been pointed out before the Court that even after disposal of second appeal by the Tribunal on 05.11.2015, after almost a period of eight months, the present petition also has been filed for which also no explanation put forth. Therefore, the chronology of event point out that the intention of the petitioner is just to evade the liability for one reason or the other. The learned AGP has contended that since the Tribunal has gone into these aspects minutely and arrived at a specific finding, the same may not be disturbed in exercise of extraordinary equitable jurisdiction. Therefore, since the petition being devoid of merit, the learned AGP contended to dismi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal refrained from going into the merit as also the pre-deposit aspect. Therefore, under this categorical finding, the second appeal filed by the petitioner came to be dismissed. (iv) One another fact emerging from the present proceeding is that order of Tribunal dated 05.11.2015 is challenged by way of present petition after almost a period of eight months and to this also, there appears to be no explanation cogently put forth. 12. Therefore, in the aforesaid premises it prima facie appears to this Court that right from the beginning the innocence which has been tried to be projected appears to be not worthy to be accepted. We found that the conclusion arrived at by the Tribunal while exercising discretion is based upon the material on record and upon examination of it. Therefore, we see no reason to dislodge the said finding more particularly, when the petitioner has invoked extraordinary equitable jurisdiction. The very plea of not aware about the passing of an order by the first appellate authority is not cogently explained except by a mere assertion that neither the practitioner nor the advocate has ever informed the petitioner about the same and all thereabout for a pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tled themselves to the benefit of the adjudication in the earlier lis. In the accompanying facts and circumstances in our comprehension, it would be iniquitous and repugnant as well to the public exchequer to entertain the belated claim of the respondents on the basis of the doctrine of promissory estoppel which is even otherwise inapplicable to the case in hand. 16. In case of State of Karnataka and ors vs. S.M.Kotrayya and ors reported in 1996 (6) SCC 267 the Supreme Court held and observed as under: 9. Thus considered, we hold that it is not necessary that the respondents should give an explanation for the delay which occasioned for the period mentioned in sub-sections (1) or (2) of Section 21, but they should give explanation for the delay which occasioned after the expiry of the aforesaid respective period applicable to the appropriate case and the Tribunal should be required to satisfy itself whether the explanation offered was proper explanation. In this case, the explanation offered was that they came to know of the relief granted by the Tribunal in August 1989 and that they filed the petition immediately thereafter. That is not a proper explanation at all. What ..... X X X X Extracts X X X X X X X X Extracts X X X X
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