Tax Management India. Com
                        Law and Practice: A Digital eBook ...

Category of Documents

TMI - Tax Management India. Com
Case Laws Acts Notifications Circulars Classification Forms Manuals SMS News Articles
Highlights
D. Forum
What's New

Share:      

        Home        
 

TMI Blog

Home List
← Previous Next →

2018 (3) TMI 531

who is aggrieved by an order can expeditiously move higher forum to challenge the same, if he is aggrieved by it. As observed by the Apex Court in many cases, the law assist those who are vigilant and not those who sleep over their rights as found in the Maxim “Vigilantibus Non Dormientibus Jura Subveniunt”. Therefore, merely because the Respondent does not appear, it cannot follow that the applicant is bestowed with a right to the delay being condoned. - We are conscious of the fact that the period of limitation should not come as an hindrance to do substantial justice between the parties. A party cannot sleep over its right ignoring the statute of limitation and without giving sufficient and reasonable explanation for the delay, expect its Appeal to be entertained merely because it is a State. Appeals filed beyond a period of limitation have been entertained by us, where the delay has been sufficiently explained such as in cases of bonafide mistake, malafide action of the Officer of the State etc. However, to seek that the period of limitation provided in the statute be ignored in case of Revenue's appeals cannot be accepted. The Appeals which are filed by the Revenue in this .....

X X X X X X X

Full Text of the Document

X X X X X X X

20th July, 2017. 3. The Affidavits further state that, the Revenue has good case on merits. It states that, the tax effect involved is over ₹ 6 crores in Notice of Motion No. 1779 of 2017 for the Assessment Year 2009-10 and over ₹ 3.4 crores in Notice of Motion No. 1783 of 2017 for the Assessment Year 2008-09. Thus, prays that the delay be condoned and Appeals be heard on merits. 4. These Notices of Motion had first come up for consideration on 5th January, 2018 at which time, the Motion was adjourned to enable completion of service. Consequent to the above, on 18th January, 2018, additional Affidavits were filed in support of the Motion. Mr. Walve, for the Revenue, fairly states that this was at the instance of the Court seeking better and fuller particulars. These additional Affidavits were filed in support of the Motion. These additional Affidavits seek to explain the delay by stating that on receipt of the approval on 29th May, 2017 the papers were sent to the Counsel who asked for certain papers and the draft was obtained by him only on 30th August, 2017. This again is without any particulars. The additional affidavit states that for subsequent Assessment Year 2010 .....

X X X X X X X

Full Text of the Document

X X X X X X X

up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of 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 instrumentalities that unless they have reasonable and acce .....

X X X X X X X

Full Text of the Document

X X X X X X X

he matter is remitted to the High Court to decide the case de novo in accordance with law. We request the High Court to dispose of this case as early as possible, preferably within a period of four months from today. 4. The civil appeal is, accordingly allowed. No order as to costs. 9. On the basis of the above order, Mr. Walve submits that the Apex Court has directed/requested the High Courts to examine the Appeals filed by the Revenue on merits, even if there is a delay on its part in filing the Appeal, by imposing costs. This is particularly so when huge stakes are involved, as in this case. This, he submits, is the law of the land with regard to the tax matters and the decision in Living Media Ltd. (supra) is not a matter arising in an tax Appeal. Besides, he submits the decision in Living Media Ltd. (supra) was of a two Member Bench of the Hon'ble Supreme Court while the decision in West Bengal Infrastructure Development Finance Corporation Ltd. (supra) was of a Three Member Bench and in the absence of the aforesaid decision being brought to the attention of the Supreme Court in the case of Living Media Ltd. they had no occasion to consider the same. Thus, the decision of .....

X X X X X X X

Full Text of the Document

X X X X X X X

orporation Ltd., (supra) according to us, does not give any such blanket direction as submitted by the Revenue. All it asked the High Courts to do is to examine the case on merits only after a case has been made out to condone the delay after awarding costs, if necessary. This has to be in terms of Section 260(2A) of the Act. Further, the observations of the Apex Court, do not in any way, fetter the High Courts from exercising its discretion to condone or not to condone the delay in filing of the Appeal. The condonation of delay application will have to be case specific and the judgment of the Apex Court cannot be read so as to ignore the will of the Parliament. Thus, the decision of the Apex Court in Living Media (supra) is not per incuriam as submitted by the Revenue. In any case, as a lower Court it is not open for us to disregard the decision of the Apex Court in Living Media (supra) as per incuriam. Therefore, the submission on behalf of the Revenue cannot be accepted that in the appeals by the Revenue, the delay has to be condoned, if large amounts are involved, on payment of costs. Therefore, according to us, each case for condonation of delay would have to be decided on the .....

X X X X X X X

Full Text of the Document

X X X X X X X

t and not those who sleep over their rights as found in the Maxim Vigilantibus Non Dormientibus Jura Subveniunt . Therefore, merely because the Respondent does not appear, it cannot follow that the applicant is bestowed with a right to the delay being condoned. 13. We are conscious of the fact that the period of limitation should not come as an hindrance to do substantial justice between the parties. However, at the same time, a party cannot sleep over its right ignoring the statute of limitation and without giving sufficient and reasonable explanation for the delay, expect its Appeal to be entertained merely because it is a State. Appeals filed beyond a period of limitation have been entertained by us, where the delay has been sufficiently explained such as in cases of bonafide mistake, malafide action of the Officer of the State etc. However, to seek that the period of limitation provided in the statute be ignored in case of Revenue's appeals cannot be accepted. The Appeals which are filed by the Revenue in this Court under Section 260A of the Act are very large in number and on an average over 2000 per year from the orders of the Tribunal. Thus, the officers of the Revenue s .....

X X X X X X X

Full Text of the Document

X X X X X X X

 

 

← Previous Next →

 

 

|| Home || About us || Feedback || Contact us || Disclaimer || Terms of Use || Privacy Policy || Database || Members || Refer Us ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.
|| Blog || Site Map - Recent || Site Map ||