TMI Blog2008 (8) TMI 282X X X X Extracts X X X X X X X X Extracts X X X X ..... 4, 394, 532, 369, 368, 1672, 541, 1930, 1945, 1941, 1625, 1463, 1465, 1718, 1719, 1720, 533, 534, 1673, 1672, 1255, 1251, 539, 540, 614, 1931, 1943,1944, 1942 of 2008. Suresh Kumar for the appellant in Notice of Motion Nos. 1897, 1898, 2246, 2247, 2094, 2291, 1896, 1960, 1963, 2044, 2046, 2049, 2093, 2095, 2248, 2249, 2289, 2290, 2292 and 2294 of 2008. Vimal Gupta for the appellant in Notice of Motion Nos. 2005, 2281, 2282 and 2358 of 2008. P. A. Vyas for the appellant in Notice of Motion Nos. 2155, 2185, 2304, 2305, 2330, 2058, 2073, 2074, 2076, 2059 and 2060 of 2008. K. R. Chaudhari for the appellant in Notice of Motion Nos. 2338, 2339, 2335, 2336, 2337 and 2340 of 2008. J. D. Mistry with B. Damodar, instructed by Kanga and Co., for the respondent in Notice of Motion No. 1897 of 2008. Ms. U. I. Dalal for the respondent in Notice of Motion Nos. 2155 of 2008. J. D. Mistry with P. C. Tripathi and Raj Darak for the respondent in Notice of Motion No. 2281 of 2008. Ms. Asifa Khan for the respondent in Notice of Motion Nos. 2304, 2305 and 2330 of 2008. Pritesh Rajgor, instructed by PDS Legal, for the respondent in Notice of Motion Nos. 2073 and 2074 of 2008. A. R. Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would not make much difference whether the applicant before the court is a Government Department or is a private individual. Of course, as per the settled principles, the courts are inclined to show greater indulgence to the departments of the Government because of inter and intra departmental steps to be taken before initiation of a legal proceedings by the Department, but this indulgence has its own limitations and cannot be extended without any reasonable cause and that too beyond the permissible time. The period of limitation has to be construed somewhat strictly and advantages that accrue to the non-applicant would normally not be taken away in a routine manner or for no plausible cause or reason. 3. As we have noticed that in the above notices of motion filed on behalf of the Commissioner(s) of Income-tax, the delay in filing the appeal varies from 18 days (Notice of Motion No. 2330 of 2008) to 1474 days (Notice of Motion No. 2093 of 2008). While in the case of the assessee in Notice of Motion No. 2281 of 2008, there is delay of 198 days in filing the appeal. 4. Firstly, we will proceed to discuss the cause shown in the affidavits in support of notices of motion file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 4-4-2007 27-10-2004 Draft appeal received from the Panel Counsel/Law Ministry 31-12-2007 27-2-2008 30-11-2004 Court fee stamps made available on _ 17-4-2008 _ Appeal filed in High Court 11-4-2008 26-6-2008 25-2-2008 Reasons for delay Appellant's office was following the matter for filing of appeal on due date. However, due to reasons beyond control of the appellant's office, which includes administrative difficulties. Appellant's office was following the matter for filing of appeal on due date. However, due to reasons beyond control of the appellant's office, which includes administrative difficulties. Appellant's office was following the matter for filing of appeal on due date. However, due to reasons beyond control of the appellant's office. Shortage of stamp papers in office. 5. From the above averments, it is clear that the reasons for condonation of delay are more or less similar. However, the period of delay varies considerably. It was expected of the applicants, Commissioner(s) of Income-tax to explain properly and with better parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t attitude. It is expected that the Government Departments should function in a properly mechanized manner and not to act so casually that because of its inaction or misdeeds, the public exchequer is made to suffer. 7. In Notice of Motion No. 2330 of 2008, there is delay of 18 days only and in paragraph 4 of the Motion, the delay has been explained. Primarily it had occurred when the brief was sent to the panel counsel for preparation of draft of appeal which took considerable time right from May 21, 2008, to June 5, 2008, which resulted in delay of 18 days. 8. In Notice of Motion No. 2059 of 2008, there is a delay of 1223 days, i.e., nearly more than three years in filing the appeal. As already noticed, in paragraph No. 2 of the affidavit in support of the notice of motion, it has been stated that the order of the Tribunal dated May 20, 2004 (wrongly mentioned as October 20, 2004, in the affidavit-in-support of notice of motion) was received in the office of the Director of Income-tax on June 23, 2004. Preparation of the report is stated to have taken some time and was forwarded to the Director of Income-tax (International Taxation) on September 21, 2004, who granted his a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delay. 10. Having referred to the factual matrix of the applications, now we would proceed to refer to certain judgments on the subject. 11. Section 5 of the Limitation Act in the recent times has been liberally construed but not so liberally that without any justification or cause an accrued right in favour of the non-applicant would be taken away in most casual manner. Another aspect of the case is that the Revenue and/or even the assessees are expected to act with care and expeditiousness and not to let things lie unprocessed for months together. Of course, the limitation for the purpose of filing of appeal under section 260A of the Act commences from the date the copy of the order is received by the parties in terms of section 260A(27)(a) of the Act. However, the knowledge of the proceedings and the judgment and its contents is known to the parties the moment the judgment is pronounced. The Tribunal is supposed to list and pronounce the judgments on a date fixed for pronouncement thus, the parties to the proceedings are well aware of the pronouncement of the judgment as well as the contents thereof and whether the appeal of the assessee/Department has been accepted or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciple that the provisions introduced to open up liability which had become barred by lapse of time will be subject to the rule of strict construction. This principle has prevailed may be with some variation relatable to the sufficiency of cause shown by the parties. 14. Even in the case of J. K. Cotton Spinning and Weaving Mills v. CCE, AIR 1998 SC 1270, it was held that a limited provision within which steps have been taken for recovery of duties not levied or not paid or short- levied or short-paid or erroneously refunded, is again subject to the rule of strict construction. 15. To law of limitation, the argument of hardship or alleged injustice has to be applied with greater care. The argument "ab inconvenienti" said Lord Moulton, "is one which requires to be used with great caution". (Reference Principles of Statutory Interpretation by Justice G. P. Singh, 11th Edition 2008). 16. The essence of the above enunciated principle thus reflects a simple but effective mandate that a provision must be construed on its plain and simple language. The provision of limitation should be construed strictly but at best its application could be liberalised where actual sufficie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in March, 1982. Though the provisions of section 5 have received a liberal construction in recent past, still the court cannot ignore that the fact where an appeal gets barred by time, a definite right accrues to the opposite party and such right should not be taken away in a routine manner and without disclosure of good and a sufficient cause for condonation of delay. The application filed for condonation of delay in the present case hardly gives any reason or cause much less a reasonable explanation for condoning the delay. Merely because there was no communication between the client and counsel could hardly be a reason for condoning the delay of 2 years as the order was pronounced on November 5, 1980, in the presence of the counsel and the appeal was filed in the year 1982. At this stage, we may refer to the judgment of the Supreme Court in the case of Ramlal v. Rewa Coal Fields Ltd., AIR 1962 SC 361, 363 wherein the court held as under :- 'In construing section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made to a judgment of the hon'ble Supreme Court of India in the case of P. K. Ramachandran v. State of Kerala, JT 1997 (8) SC 189; [1998] AIR 1998 SC 2276, 2277, where the hon'ble court held as under :- 'Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribe and the courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the miscellaneous first appeal shall stand dismissed as barred by time. No costs.' In the application for condonation of delay hardly any reason has been stated. All that has been stated is that no authorised person had appeared on behalf of the appellant when the decree was passed on November 5, 1980. Thereafter, application was filed under Order 9, rule 9, Civil Procedure Code and later on another application was filed under Order 47, Rule 1, Civil Procedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al shall stand dismissed as barred by time. No costs.' 10. The judgments of the Supreme Court in the cases of Tata Yodogawa Ltd. [1988] 38 ELT 739 and A. M. D. Bilal and Co. [1999] 108 ELT 331 (SC) are squarely applicable to the facts and circumstances of the present case. The application for condonation is without any content, reasonable or satisfactory explanation. It was obligatory upon the part of the applicant-UOI to reasonably explain the delay, may be, by not giving explanation for each day delay but to explain the delay in a composite manner. In the entire application, no reference of any date, officers and the need for sending the file to any particular section has been stated. This was a case simpliciter for recovery of money of Rs. 3,35,000 which had been decreed against the authorities and it was held that they were liable to pay interest. It does not appear to be such a complicated issue for determination by the court which would require the UOI or its officers to take years and years to decide whether the appeal should or should not be filed. Then when it is filed after an year, it is incomplete in all respects for which action there is not even a whisper mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isbursement of compensation, determination of compensation and then in filing legal proceedings include the appeals invites twin disadvantages that are opposed to public policy and even good governance. Firstly, even in good cases because of inordinate and unexplained delay, the court may decline to entertain the appeals. Secondly, the liability of statutory interest increases even passing day which burdens the public exchequer. Both these adverse rigours could be avoided by timely and co-ordinate actions. The authorities are required to have a more practical and pragmatic approach to provide solution to this problem. The inordinate delays occurring from inaction or non-co-operation of the departments, as is demonstrated by the facts of the present cases, needs to be corrected and it will be desirable to fix the responsibility of the erring officer/official..." 19. The aspect of applying the principles of law of limitation with their rigours was also considered by a Bench of the Punjab and Haryana High Court in the case of Sanjeev Babbar v. Dev Papers P. Ltd. [1998] 118 PLR 814, where the court held as under :- ".....The revision petition as originally filed was barred by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is no motive behind delay. This necessarily implies that parties must act bona fidely, expeditiously and with due care. A casual or a negligent litigant who has acted with utter irresponsible attitude, cannot claim the condonation of delay in law when the right has accrued to the other side. 21. How long the courts will condone defaults as a matter of course in Government departmental cases. In the recent times, the Supreme Court and various High Courts have fairly applied the principle of public account ability and trust to the action of the Government officers/officials. It is expected of the concerned authorities to formulate their system and working methodology in a way which would endeavour to achieve the object of timely disposal of administrative files as opposed to "I will deal with the matter at leisure and at my convenience". The practice of bureaucratic delay was dealt with by the Supreme Court with a pious hope that curse of Lord Curzon will not haunt the wheels of administration in the case of State of Kerala v. Kumari T. P. Roshana [1979] 1 SCC 572. The court held as under (page 589) "45. We are aware that these various directions and orders call for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. 23. In performance of their functions, public officers or public servants have the duty to act judiciously, fairly and expeditiously. An officer can hardly justify that a file would lie on his table for months or days together and he would not act on the said file just because he claims to be pre-occupied. Another argument advanced on behalf of the Department was that there are time bar cases and in that rush the officers are not able to act. Firstly, there is no specific averment in this regard with any dates in the affidavit filed in support of the notice of motion. Secondly, the time barring cases are completed by 31st March or immediately thereafter, while all these cases relate to the period subsequent to March of the respective assessment year. Pre-occupation of an officer or officials can be a reasonable excuse, but for a short period and nothing justifies the inaction for a pretty long period running into months. If such an excuse is to be permitted in law, then the courts would have to completely ignore the law of limitation. Public interest imposes an obligation upon the Department as a whole to act in a channalised manner and to ensure that every appeal which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... four months. Similarly, in Notice of Motion No. 2059 of 2008, the copy was received on June 23, 2004, and no steps whatsoever were taken between June 23, 2004, till September 20, 2004. Thereafter, various persons claimed to have acted in regard to various aspects of the case, like scrutiny, Assessing Officer's report, approval and authorisation. The draft appeal was received in the office of the appellant on November 30, 2004, but the appeal has been filed in the High Court on February 25, 2008. No reason whatsoever has been given as to what was being done for the intervening period for more than three months. Apart from the standardised proforma giving chronology of dates and events in the affidavit in support of the notices of motion attempting to show sufficient cause for condonation of delay, no event whatsoever during this period has been referred to so as to render the cause sufficient and delay reasonable. These facts clearly show that there was utter negligent and irresponsible attitude on the part of the officers/officials. 24. In all the applications for condonation of delay, similar tables have been given with more or less similar facts but of course the dates are di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the orders of the Tribunal placed on record, it is obvious that the orders were pronounced in accordance with law much prior to the dates when the copies were received by the Department. In other words, the Department was fully aware of the fate of the case before the Tribunal and its responsibilities arising from such a judgment and order. The plea of time barring cases, overload work are hardly of any consequence in the present case. We have already noticed that majority of the cases where the delay is large, they all are stated to be in process only after the expiry of 31st March of the respective year. The question of public revenue cannot be used as an excuse. It in fact adds to the responsibility and liability of the Department. Wherever there is higher public revenue, greater is the responsibility to act with utmost expeditiousness. It cannot justify the conduct that you sleep over and ignore your statutory rights for years and then take up the plea of public revenue. The court can also not completely ignore the interest of the assessee who might have succeeded in the previous proceedings leading to the filing of the appeal. 27. The learned counsel appearing for the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 of 2008, 2289 of 2008, 2290 of 2008, 2294 of 2008, 2324 of 2008, 2336 of 2008, 2337 of 2008 and 2340 of 2008 are rejected. 30. Having dealt with all these notices of motion on the merits and having allowed some or disallowed the others, we consider it as the duty of the court to ensure due compliance of law. It is also a settled principle of law that court should pass such directions which would help in avoiding unnecessary litigation or where the root cause of litigation can be so managed as to reduce the burden of justice delivery system. Boni judicis est causes litium dirimere. 31. Where there is unreasonable and unexplained delay on the part of the authorities concerned in instituting the appeals within the period of limitation it is detrimental to the public revenue, it is also opposed to public policy and good governance of the Department. Furthermore, the case where the law is in favour of the Department or where departmental appeal makes out a good case as understood in common parlance, because of inordinate and unexplained delay if it is dismissed as barred by time as courts decline to hear the matters on the merits, it will have adverse consequences. These adver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2058 of 2008, 2094 of 2008, 2291 of 2008, 2339 of 2008, 1963 of 2008, 1960 of 2008, 2044 of 2008, 2045 of 2008, 2049 of 2008, 2059 of 2008, 2060 of 2008, 2093 of 2008, 2095 of 2008, 2248 of 2008, 2249 of 2008, 2289 of 2008, 2290 of 2008, 2294 of 2008, 2324 of 2008, 2336 of 2008, 2337 of 2008 and 2340 of 2008. Resultantly, Income-tax Appeal (Lodging) Nos. 1136 of 2008, 612 of 2008, 1940 of 2008, 532 of 2008, 1672 of 2008, 541 of 2008, 1941 of 2008, 1463 of 2008, 1465 of 2008, 1718 of 2008, 1719 of 2008, 1720 of 2008, 533 of 2008, 534 of 2008, 1673 of 2008, 1671 of 2008, 1255 of 2008, 1251 of 2008, 539 of 2008, 540 of 2008, 614 of 2008, 1931 of 2008, 1943 of 2008, 1942 of 2008 and 1944 of 2008 do not survive for consideration and are accordingly dismissed. 33. We have allowed Notices of Motion Nos. 1898 of 2008, 2155 of 2008, 2076 of 2008, 1897 of 2008, 2005 of 2008, 2073 of 2008, 2074 of 2008, 2185 of 2008, 2186 of 2008, 2246 of 2008, 2247 of 2008, 2304 of 2008, 2305 of 2008, 2330 of 2008, 2358 of 2008, 2322 of 2008, 2338 of 2008 and 2368 of 2008 condoning the delay filed by the Department as well as Notice of Motion No. 2281 of 2008 filed by the assessee. Resultantly, Income ..... X X X X Extracts X X X X X X X X Extracts X X X X
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