Kerala High Court
Vasu & Co. vs State Of Kerala on 8 June, 2001
JUDGMENT S.Sankarasubban, J.
1. All these tax revision cases are filed against the common order passed by the Tribunal. The assessee is the petitioner. The assessee filed six appeals, T.A. Nos. 171, 172, 173, 174, 175 and 176 of 2000 before the Sales Tax Appellate Tribunal Additional, Bench II, Ernakulam. The appeals were filed out of time. There was a delay of 1,051 days in filing the appeal. The Appellate Tribunal dismissed the petition to condone the delay and consequently, the appeals were dismissed. It is against the above decision that the present revisions have been filed.
2. In the affidavit filed before the Tribunal the revision petitioner stated that he was assessed under the Kerala General Sales Tax Act, 1963 and Central Sales Tax Act, 1956 for the assessment years 1985-86 to 1987-88. According to him, he had entrusted to one. C. Neelakandan Kartha, Advocate, to file appeals against to orders of the Deputy Commissioner and he was under the impression that the latter had filed the appeals. When revenue recovery proceedings were initiated by the Revenue Recovery Authorities he requested to move stay petitions before the Tribunal. But the Advocate was not prepared to file stay petitions. Therefore, the petitioner entrusted the papers to another Advocate. Thereafter, he approached this Court by filing O.P. No. 15178 of 1999 and stay was granted by this Court till the disposal of the Original Petition. Subsequently, he received hearing notice from the Tribunal. Then he came to understand that the appeals were not filed by Neelakandan Kartha. Hence appeals were filed by him. Thus, the delay was attributed. The Tribunal was of the view hat the matter has been taken light heatedly by the assessee. The averments in the affidavit have not been substantiate with proper evidence. Hence, the petition to condone the delay was dismissed. It is against the above order that the present revisions are filed.
3. Learned counsel for the petitioner Sri. N. Muraleedharan Nair submitted that though the petitioner had got books of accounts in respect of the transactions, he could not produce the same at the appropriate time. The petitioner is not having any business at present and is placed in great financial difficulties. There was no suppression or omission in the books of accounts maintained and whatever tax due was also paid at the appropriate time. According to him, now as per the orders, the assessee has to pay large arrears and the assessee has a good case on merits. He further submitted that in the matter of condoning delay, the court should not be very rigid and submitted that in matters like taxation it will always appropriate to give an opportunity to argue the case on merits.
4. Learned Government Pleader Sri. V.V. Asokan on the other hand opposed these tax revision cases. According to him, as a matter of fact when the assessee approached this Court, he had not filed stay petitions. The judgment of this Court was reviewed and this Court was of the view that the petitioner had committed contempt and mulcted him with costs. According to the learned counsel, the conduct of the petitioner does not deserve any sympathy from this Court and the orders passed by the appellate authority need not be interfered.
5. We referred to the records in O.P. No. 15178 of 1999. It is true that the order was reviewed. But there is an observation by this Court directing the Tribunal to decided the appeal and the petition to condone the delay in accordance with law.
6. After hearing both sides, we are of the view that the petitions have to be allowed. True, in the matter of condoning delay, there is a discretion vested in the Tribunal and that discretion, if it is .not properly exercised cannot be interfered with . When we went through the order passed by the Tribunal, we find that it was carried away by the fact the nobody was examined to prove that the matter had been entrusted to an advocate. Further it was of the view that the delay of 1,051 days is inordinate.
7. It also referred to the order in R.P. No. 144 of 2000 in O.P. No. 15178 of 1999. It is true that in R.P. No. 144 of 2000 in O.P. No. 15178 of 1999, this Court was pleased to hold that the petitioner had committed contempt. For that purpose, the petitioner was mulcted with cost. But this Court took particular care in stating that the appeals and the stay petitions should be disposed of in accordance with law. According to us, whatever happened before this Court in the Original Petition could not be taken consideration to find out whether the delay can be condoned or not. The petitioner had been punished for what he has done before this Court. For whatever wrong the petitioner had done before this Court, the Tribunal cannot take advantage and shut the doors against the petitioners.
8. In Collector, Land Acquisition, Anantnag v. Mst. Katiji (1987) 66 STC 228, the Supreme Court held as follows:
"The expression 'sufficient cause' employed by the Legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. And such a liberal approach in adopted on principle and it realised that:
1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. Every day's delay must be explained' does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in justice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides.
A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of appeal".
It is relevant to quote the following observations made in the decision reported in N. Balakrishnan v. M. Krishnamurthy, AIR 1998 SC 3222, which are as follows:
"It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse"
Again in paragraph 11 of the above decision, the Supreme Court observed as follows: "Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek, their remedy promptly. The object of providing legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During afflux of time newer cause would sprout up necessitating newer persons to seek legal remedy by approaching the courts". It is worthwhile to note the following observations in paragraph 12 of the above decision: "A court knows hat refusal to condone delay would result in foreclosing a suitor from putting froth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words' sufficient cause under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice".
9. We are of the view that it is not necessary in all cases to give evidence regarding the delay in filing appeal. The affidavits are documents of evidence. On the basis of the affidavits, if the court is satisfied that sufficient explanation has been given for condoning delay, then the affidavit can be accepted as evidence. If proof what is stated in the affidavit is insisted on, that will prolong the litigation. Hence is a case where the assessee is a aggrieved by the orders of the assessing authorities. According to him he has been directed to pay tax which he was not bound to pay and on the ground of delay the Tribunal has shut doors against him. Of course, if the petitioner had been negligent or irresponsible, the court cannot come to his succour. Here we find some truth in what the petitioner had stated in so far as he has approached this Court by filing Original Petition. It would have been better, if some evidence was given regarding his case that the particular advocate did not file appeals. But the court can take judicial notice of the difficulty in getting such affidavits.
10. After considering the facts and circumstances of the case, we are of the view that the Tribunal went in dismissing the petitions to condone the delay. The order of the Tribunal refusing to condone the delay and the order of the Tribunal dismissing the appeals are set aside. The appeals are restored to file. The Tribunal is directed to hear the appeals on merits after giving an opportunity to the petitioner to adduce any documentary evidence or being to the notice of the Tribunal any new facts.
T.R.C. s are allowed.
Order in C.M.P. No. 1431 of 2001 of TRC No. 92 of 2001 dismissed.
Order in C.M.P. No. 1549 of 2001 of TRC No. 103 of 2001 dismissed.
Order in C.M.P. No. 1552 of 2001 in TRC No. 104 of 2001 dismissed.
Order in C.M.P. No. 1554 of 2001 in TRC No. 105 of 2001 dismissed.
Order in C.M.P. No. 1660 of 2001 in TRC No. 115 of 2001 dismissed.
Order in C.M.P. NO. 1995 of 2001 in TRC No. 151 of 2001 dismissed.
11. Petitions allowed.