TMI Blog2018 (5) TMI 1033X X X X Extracts X X X X X X X X Extracts X X X X ..... ons involved, we are inclined to condone the delay. Of course, upon the cost being paid to the respondent. Identical issue decided in the case of STATE OF GUJARAT Versus WELSPUN GUJARAT STAHL ROHREN LTD. [2013 (3) TMI 626 - GUJARAT HIGH COURT], where it was held that explanation in the form of administrative clearances and consumption of time in the office of the Government Pleader in preferring the appeals are pressed in service for explaining the delay. Further, the duty amount involved in the appeal is also substantially large. Considering these aspects of the matter, delay is condoned by awarding cost of ₹ 15,000/-, which shall be paid to the respondent within four weeks from today. Delay condoned with cost - COD application allowed. - Civil Application (OJ) NO. 1 of 2017 In Tax Appeal No. 1689 of 2017 - - - Dated:- 9-3-2018 - MR. AKIL KURESHI AND MR. B. N. KARIA, JJ. For The Petitioner : Mr Chintan Dave, AGP For The Respondent : Mr Vishwas K Shah IA ORDER ( PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. This application is filed by the State Government seeking condonation of delay of 444 days in filing Tax Appeal. Tax Appeal is directed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance Department and on 05.07.2016 the Finance Department approved the proposal. After receiving the proposal from Finance Department all necessary documents along with order of the Tribunal were handed over to the G.P. Office on 13.07.2016 to file the Tax Appeal. Thereafter, inadvertently the papers were misplaced in the office of the Government Pleader and hence the same could not reach the concerned law Officer for drafting and therefore appropriate draft of the Tax Appeal was not prepared. Thereafter, the inadvertent and bona fide error of missing papers was brought to notice and hence the office of the Government Pleader immediately contacted the concerned officials of the VAT department in March 2017. In this regard, the second set of papers was again handed over to the office of the Government pleader on 09.06.2017. Thereafter the papers were handed over to the concerned Law officer for drafting of Tax Appeal on 09.06.2017. 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 drafted the memo of the Tax Appeal along with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r receiving the papers on 13.07.2016, the same were misplaced. When this came to light, the VAT department was contacted in March 2017 for supplying second set of papers. Government Pleader's office received such papers on 29.06.2017. Tax Appeal was drafted and sent to VAT Department on 12.07.2017 and the appeal was filed on 09.08.2017. 5. This is therefore not a case where long stretch of delay had remained totally unexplained. Considering the explanation rendered for the delay caused in filing appeal and the tax implications involved, we are inclined to condone the delay. Of course, upon the cost being paid to the respondent. Not condoning the delay would amount to terminating an issue involving sizeable tax implications without the High Court considering the same on merits. 6. Counsel for the respondent, however, heavily relied on two judgements of this Court. Firstly on a judgement dated 29.11.2017 in O.J.Civil Application No. 691 of 2017 in case of State of Gujarat vs. Pipavav Defence in which, under somewhat similar circumstances, the Court refused to condone the delay. In the said case also, part of the reasons cited was the loss of files in the Government Pleade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td , reported in [2011] 334 ITR 269 (SC), in which it was observed thus :- 5. Looking to the amount of tax involved 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, file-pushing, and passing-on- the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. The State which represents collective cause of the community, does not deserve a litigant-non-grata status. The courts, therefore, have to be informed with the spirit and philosophy o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eristic of the functioning of the Government. Government decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red-tape 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 decision-making 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 the files from table to table and keeping it on table for considerable time causing delay - intentional or otherwise - is a routine. Considerable delay of procedural red-tape in the process of their making decision is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e State for condoning the delay. In the present case, as already noticed, explanation in the form of administrative clearances and consumption of time in the office of the Government Pleader in preferring the appeals are pressed in service for explaining the delay. Further, the duty amount involved in the appeal is also substantially large. Considering these aspects of the matter, delay is condoned by awarding cost of ₹ 15,000/-, which shall be paid to the respondent within four weeks from today. 11. In case of State of Gujarat and others v. Madansinh Ramsing Rajput (Civil Application No.11208/2016, CAV order dated 23.6.2017), this Court had made the following observations : 20. Having taken into consideration the pleadings, the case papers and the arguments forwarded by the respective parties, this Court finds that the State Government is able to demonstrate that the State of Gujarat was from the beginning in the process of taking decision to prefer appeals or not and for that purpose the file has seen movement between Narmada Water Resources, Water Supply and Kalpasar Department, which is concerned Department and the local office from where proceedings of acq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State of an opportunity of agitating a legal right to challenge the award before higher forum. Moreover, considering the fact that huge tracts of land were acquired and so far as litigation of acquisition proceeding was in four different groups and each group consists of several references. All these groups have been decided on different dates as mentioned in the tabular form hereinabove. Therefore, the first award in a group of same acquisition was on 05.11.2014. Therefore, it was reasonable for the State in this case to wait for final outcome in each of the references so that a uniform stand can be taken in such group of litigations. 24. This Court is of the view that condonation of delay and permitting the State to proceed with the litigation would not, in any manner, cause any hardship to the claimants as in any case, the lands stood acquired for the public purpose. 25. Therefore, in the aforesaid set of circumstances, this Court is persuaded to construe the delay liberally and accept the explanation given for the delay in preferring the appeal. These Civil Applications are therefore, required to be allowed. 12. In the result, delay is condoned howe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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