TMI Blog2018 (5) TMI 1039X X X X Extracts X X X X X X X X Extracts X X X X ..... clined to condone the delay. The delay in filing the tax appeal is condoned, however, subject to condition that the applicant shall pay cost of ₹ 25,000/to the respondent latest by 30.4.2018 - application allowed. - Civil Application (OJ) NO. 1 of 2017 in IN Tax Appeal No. 877 of 2017 - - - Dated:- 15-3-2018 - MR. AKIL KURESHI AND MR. B. N. KARIA, JJ. For The Petitioner : Ms Shruti Pathak, AGP For The Respondent : Ms Vaibhavi K Parikh IA ORDER ( PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. This Civil Application is filed by the State seeking condonation of delay of 541 days in filing the tax appeals. 2. Delay is considerable. In order to explain such delay in the Civil Application initially following averments were made : 3 The applicant further says that in the present case, the Tribunal passed the order on 06/08/2015 in Second Appeal No.473 of 2015. The Applicant states that the order dated 06/08/2015 was communicated to the applicant on 17/08/2015. Thereafter on 10/11/2015 the proposal to file the tax appeal was sent to the Finance Department and on 17/12/2015 the Finance department approved the proposal. After receivi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Learned AGP Ms. Shruti Pathak submitted that delay though considerable is sufficiently explained. The tax implication in the present tax appeal is to the extent of ₹ 4.73 crores. She submitted that the Tribunal had decided the appeal on merits when the only question presented before the Tribunal was whether the assessee's appeal was correctly dismissed by the appellate authority for not satisfying the predeposit requirement. She relied on the judgment of Division Bench of this Court in case of State of Gujarat v. Mohit Industries Ltd (Civil Application (OJ) No.366/2017 and connected matter, order dated 15.9.2017). 6. On the other hand, learned counsel Shri Vaibhavi Parikh opposed the application contending that delay is inordinate and has remained unexplained in two affidavits filed by the State authority. She submitted that no special concession can be shown to the State machinery when it comes to condonation of delay. The legal requirement is that delay should be sufficiently explained whether such delay occasioned by the State or a private individual. She relied on judgment of Supreme Court in case of Postmaster General and others v. Living Media India Limited a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n it was noticed that despite instructions, appeal was not filed, attempts were made to reconstruct the set and file the appeal after drafting and vetting. In absence of any averments to the contrary or any evidence of mala fide intentions at the level of GP office, delay should be condoned, ofcourse subject to payment of cost. 10. In somewhat similar circumstances in a recent judgment in case of State of Gujarat v. GAIL India (Civil Application (OJ) No.1/2017 in Tax Appeal No.1689/2017, IA order dated 9.3.2018), we had condoned the delay making the following observations : 3. It can thus be seen that the reasons cited for preferring the appeal after delay mainly raised on two grounds. First is that the administrative clearances and decisions take sometime. It is pointed out that the judgement of the Tribunal dated 24.02.2016 was received on 28.03.2016. After receiving opinion from the concerned authorities, the Commissioner, Commercial Tax Department, sent a proposal to the Government for filing appeal on 30.05.2016. Queries in this respect were made and replied by the Commercial Tax Department. Ultimately, approval was received from the Government on 05.07.2016. Neces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, filepushing, and passingonthebuck 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 litigantnongrata status. The courts, therefore, have to be informed with the spirit and philosophy of the provision i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioning 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 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 redtape in the process of their making decision is a common feature. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 followingobservations : 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 acquisition were initiated, then decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 11. In the result, delay in filing the tax appeal is condoned, however, subject to condit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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