TMI Blog2017 (11) TMI 1682X X X X Extracts X X X X X X X X Extracts X X X X ..... )-691/2017 - - - Dated:- 29-11-2017 - MS. HARSHA DEVANI And MR. A.S. SUPEHIA JJ. HONOURABLE MR.JUSTICE A.S. SUPEHIA Date : 29/11/2017 ORAL ORDER (PER : HONOURABLE MS.JUSTICE HARSHA DEVANI) By this application under section 5 of the Limitation Act, the applicant State of Gujarat seeks condonation of delay of HONOURABLE MR.JUSTICE A.S. SUPEHIA Date : 29/11/2017 ORAL ORDER (PER : HONOURABLE MS.JUSTICE HARSHA DEVANI) By this application under section 5 of the Limitation Act, the applicant State of Gujarat seeks condonation of delay of 549 days caused in filing appeal against the order dated 8.12.2015 passed by the Gujarat Value Added Tax Tribunal, Ahmedabad (hereinafter referred to as the Tribunal), in Second Appeal No.991 of 2013. 2. Mr. Chintan Dave, learned Assistant Government Pleader referred to the averments made in the memorandum of application as well as the additional affidavit filed on behalf of the applicant, to submit that the delay that has occasioned in filing the tax appeal has been sufficiently explained and hence, the same deserves to be condoned. It was submitted that the delay has mainly occasioned on account of the fact that due to inadvertence, the case p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the tax appeal and that on the averments made in the application and additional affidavit, it cannot be said that such delay has sufficiently been explained. In support of her submission, the learned advocate placed reliance upon the decision of the Supreme Court in the case of Pundlik Jalam Patil (dead) by LRs v. Executive Engineer, Jalgaon Medium Project and another, (2008) 17 SCC 448 , for the proposition that a party is entitled to wait until the last date of limitation for filing the appeal. But when it allows limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstance arising before the limitation expired, it was not possible to file the appeal within time. No event or circumstance arising after the expiry of limitation can constitute sufficient cause. It was pointed out that in the facts of the present case, majority of the circumstances narrated by the applicant arise after the expiry of the period of limitation and hence, cannot constitute sufficient cause. 3.1 Ms. Thakore further placed reliance upon the decision of the Supreme Court in the matter of Commissioner Of W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the Government. 3.3 The learned advocate for the respondent, accordingly, urged that the delay caused in filing the appeal cannot be said to have been sufficiently explained and hence, the application deserves to be rejected. 4. At the outset it would be necessary to refer to the grounds stated by the applicant in the memorandum of application to explain the delay of 549 days caused in filing the tax appeal. It has been averred therein that the impugned order of the Tribunal was passed on 8.12.2015 and was communicated to the applicant on 22.12.2015. Thereafter, on 4.2.2016, the proposal to file tax appeal was sent to the Finance Department and on 15.2.2016, the Finance Department approved the proposal. Thus, it is evident that at the initial stage itself there is a delay of almost one and half months on the part of the applicant in forwarding the proposal to file tax appeal to the Finance Department. Considering the fact that the prescribed period of limitation for preferring an appeal is 90 days from the date of receipt of the certified copy of the order, consumption of a period of more than 40 days in merely forwarding the proposal can itself be considered to be a cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fteen months, no steps were taken towards filing the appeal and the sole explanation that has come forth is that the papers were misplaced in the Office of the Government Pleader without giving any further details. 7. In the affidavit it is further averred that after the papers were handed over to the concerned law officer, responsible officers of the Value Added Tax Department were consulted and thereafter the memorandum of appeal was drafted together with the stay application and the condonation of delay application and were forwarded through e-mail to the officials of the Value Added Tax Department on 15.8.2017. Thus, despite the fact that the papers were missing for a period of fifteen months and the prescribed period of limitation has already expired since long, even thereafter, no efforts have been made to ensure that the appeal is filed at the earliest and after a period of more than two months from the date of receipt of the papers by the Office of the Government Pleader for second time, the memorandum of appeal came to be drafted. Not only that, even after the memorandum of tax appeal was forwarded to the Department, it was signed by the officials of the Value Added Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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