TMI Blog2017 (9) TMI 1171X X X X Extracts X X X X X X X X Extracts X X X X ..... tributed partly to the delay. Since this explanation is forthcoming on oath and when the revenue effect involved in the Tax Appeals is substantial, we would accept the explanation and condone the delay rather than rejecting the Tax Appeals without entering into the merits, of course by awarding cost. A responsible officer of the level of Deputy Commissioner has stated on oath twice that upon receipt of the copy of the judgment of the Tribunal, proposal was moved for challenging the same and once the decision to challenge the same was taken, papers were supplied to the Government pleader for filing appeal. We do not have reason to doubt or dispute such averments made on oath. Merely because, may be due to miscommunication between the departments, the Court in the writ petition was not apprised about such pending proposal, would not mean that there was no such proposal pending. In the case of STATE OF GUJARAT Versus WELSPUN GUJARAT STAHL ROHREN LTD. [2013 (3) TMI 626 - GUJARAT HIGH COURT] in somewhat similar background, the Court had condoned such delay in the process holding that adoption of strict standard of proof sometimes fail to protract public justice, and it would resul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... government Pleader requested for all necessary documents. Thereafter, all the necessary documents were supplied to the office of the Government Pleader on 29.12.2015 to file the tax appeal. Thereafter, the papers were given to the concerned Asst. Government Pleader on 23.01.2016. Thereafter, the concerned Assistant Government Pleader had called for the orders passed by the Assessing Officer as well as the First Appellate Authority for the years 2006-07 and 2009-10. The same was supplied on 25.04.2016 and thereafter, as the case pertains to the ratio laid down in the case of M/s. JCT Ltd. and M/s. Madhusudan ltd., the papers relating to such aspects have also called for by the concerned AGP. The same were supplied on 25.12.2016. Thereafter, after having discussion with the concerned officer, the Assistant Government Pleader prepared the tax appeal on 25.02.2017. The Tax Appeal came to be filed on 19417 before this Hon'ble Court. The applicant says that the present tax appeal was required to be filed on or before 26/11/2015. However, the same was filed on 19417 and thus, there is a delay of 511 days in preferring the tax appeal. 6. The applicant further states that due to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded over to the office of the Government Pleader in the month December, 2016. Thereafter the papers were handed over to the concerned Law Officer for drafting of Tax Appeal. The concerned Law Officer had thereafter, consulted the responsible officers of the VAT department and meetings in this regard for discussing the issues were arranged. Thereafter, the concerned Law Officer had prepared the memo of the Tax Appeal along with the Application for Stay as well as Condonation of Delay and the same were forwarded to the officials of VAT department on 25.02.2017. Thereafter, the officials of VAT department signed the papers of Tax Appeal and same were ultimately filed before the registry of this Hon'ble Court on 19.04.2017. Hence, there is a delay of 511 days in preferring the captioned Tax Appeal. 4. It is further submitted that the present bona fide error of missing papers may be taken into consideration by this Hon'ble Court and the delay caused in preferring the present Tax Appeal may kindly be condoned in the interest of justice. 5. On the basis of such averments, learned AGP Shri Dave requested that the delay be condoned. He submitted that there was no lack o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... volved in the Tax Appeals is substantial, we would accept the explanation and condone the delay rather than rejecting the Tax Appeals without entering into the merits, of course by awarding cost. 9. The contention that in the writ petition filed by the assessee before this Court seeking refund, no stand was taken by the department that the judgment of the Tribunal is under proposal for challenge, would not persuade us to reject the application for condonation of delay. This is for two reasons. Firstly, the department never conveyed to the Court that a decision was taken not to challenge the judgment of the Tribunal. By not apprising the Court that the judgment may be challenged, the department did not gain any benefit out of the said litigation. Secondly, the suggestion that since this fact was not pointed out to the Court would mean that there was no earlier proposal to challenge the judgment, also cannot be accepted. A responsible officer of the level of Deputy Commissioner has stated on oath twice that upon receipt of the copy of the judgment of the Tribunal, proposal was moved for challenging the same and once the decision to challenge the same was taken, papers were supplie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ismiss the State appeal without consideration on merits. The applicant has correctly placed reliance on the observation of Supreme Court in case of Commissioner of IncomeTax V. West Bengal Infrastructure Development Finance Corporation Ltd , reported in [2011] 334 ITR 269 (SC), in which it was observed thus: 5. Looking to the amount of tax in this case, we are of the view that the High Court ought to have decided the matter on the merits. In all such cases where there is delay on the part of the Department, we request the High Court to consider imposing costs but certainly it should examine the cases on the merits and should not dispose of cases merely on the ground of delay, particularly when huge stakes are involved. In case of State of Nagaland V. Lipok AO Ors., reported in (2005) 3 Supreme Court Cases 752, it was observed as under : 13. Experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the notemaking, filepushing, and passingonthebuck ethos, delay on its part is less difficult to unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... what constitutes sufficient cause for purposes of Section 5, it might, perhaps, be somewhat unrealistic to exclude from the consideration that go into the judicial verdict, these factors which are peculiar to and characteristic of the functioning of the Government. Government decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural redtape in the process of their making. A certain amount of latitude is, therefore, not impermissible. It is rightly said that those who bear responsibility of Government must have a little play at the joints . Due recognition of these limitations on governmental functioning of course, within reasonable limits is necessary if the judicial approach is not to be rendered unrealistic. It would, perhaps, be unfair and unrealistic to put Government and private parties on the same footing in all respects in such matters. Implicit in the very nature of Governmental functioning is procedural delay incidental to the decisionmaking process. The delay of over one year was accordingly condoned. 15. It is axiomatic that decisions are taken by officers/agencies proverbially at slow pace and encumbered process of pushing th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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