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M/S Radhey Shyam Shree Krishna v. The Commissioner Of Trade Tax, U.P., Lucknow - SALES/TRADE TAX REVISION No. 816 of 2003 [2003] RD-AH 297 (27 August 2003)


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M/s Radhey Shyam Shree Krishna ....Applicant


The Commissioner of Trade Tax, U.P., Lucknow. ....Opp.Party


Hon'ble Rajes Kumar, J.

This is a revision filed by the Commissioner of Sales Tax under Section 11 (1) of the U.P. Trade Tax Act (hereinafter referred to as "Act") against the order dated 18.08.2003 passed by Sales Tax Tribunal, Ghaziabad relating to the assessment year 2000-2001.

The brief facts of the case are that the applicant filed the appeal under Section 9 of the Act against the assessment order passed under the Central Sales Tax Act on 12.06.2003 beyond time alongwith application for condonation of delay under Section 5 of the Limitation Act. In the application it was stated that the assessment order dated 04.01.2003 was received on 10.02.2003 and accordingly, the appeal should have been filed by 10.03.2003. It has been stated that the tax was assessed at the higher rate on account of non-furnishing of Form-C for which the assessing authority has given time to file upto 30.03.2003. It has been stated that the Shree Krishna Poddar  had fallen ill on 25.03.2003 and remained ill upto 09.06.2003; thereafter, when he was able to perform his work, he contacted his Advocate and filed the appeal on 12.06.2003. In support of the illness, medical certificate was filed. The Joint Commissioner (Appeal)-II, Trade Tax, Ghaziabad vide its order dated 21.06.2003 rejected the application under Section 5of the Limitation Act and rejected the appeal as barred by limitation. Against the said order, the appeal was filed before the Trade Tax Tribunal, Ghaziabad. The Tribunal vide its order dated 18.08.2003 rejected the appeal. Aggrieved by the said order, the present revision has been preferred.

I have heard Sri Bharat Ji Agrawal, Senior Advocate, assisted by Sri Piyush Agrawal, learned counsel for the applicant and Sri B.K.Pandey, learned Standing Counsel. As agreed by both the parties, present revision is being disposed of at the stage of admission itself.

I have perused the order of the Tribunal. The Tribunal has confirmed the rejection of the application for the condonation of delay on the ground that the applicant was under treatment of a doctor, who was Child Specialist for such a long time and during the period of illness, the business was properly carried on.

In my opinion, the view of the Tribunal is pedantic and based on surmises and conjectures. The doctor, who is child specialist, is also competent to treat the deceases of adult and in case, if the proprietor was under the treatment of a Doctor, who was child specialist, the illness of the proprietor can not be disputed. It is also a matter of common knowledge that various persons carries on their business through their employees and hence, in the present case, if during the period of illness the business was carried on through his employees, the illness of the proprietor can not be disputed. In my opinion, sufficient cause has been shown in filing the appeal beyond time and therefore, delay is liable to be condoned.

The law of limitation is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation).  Rules of Limitation are not meant to destroy the rights of the parties, rather the idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

In the case of Collector, Land Acquisition Vs. Mst. Kati Ji and others, reported in 1987 (13) ALR, 306(SC), Hon'ble Supreme Court held as follows:

"The Legislature has conferred the power to condone delay by enacting section 5 of the Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on "merits". 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 of 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 is adopted on principle as it is realized 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 merit 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 hous's delay, every second's delay ? The doctrine must be applied in a rational, common sense and pragmatic manner.

4. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side can not claim to have vested right in injustice 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 malafides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk.

6. It must be grapped that the judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so."

In N. Balakrishnan Vs. M.Krishnamurthy, reported in (1998) 7 SCC, 133, the Apex Court explained the scope of limitation and condonation of delay, observing as under:

"The primary function of a Court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy for the redress of the legal injury so suffered. The law of limitation is thus founded on public policy."

In Smt.Prabha Vs. Ram Prakash Kalra, reported in 1987 (Suppl) SCC, 338, the Supreme Court took the view that the Court should not adopt an injustice-oriented approach in rejecting the application for condonation of delay.

In Vedabai alias Vaijayanatabai Baburao Patil Vs. Shantaram Baburao Patil and others, reported in 2001 (44) ALR, 577 (SC), the Apex Court made a distinction in delay and inordinate delay observing as under :

"In exercising discretion under section 5 of the Limitation Act, the Courts should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case the consideration of prejudice to the other wise will be a relevant factor so the case calls for a more cautious approach...."

In New India Insurance Co. Ltd., Vs. Smt.Shanti Misra, reported in 1976, AIR SC, 237, Hon'ble Supreme Court held that discretion given by section 5 should not be defined or crystallized so as to convert a discretionary matter into a rigid rule of law. The expression "sufficient cause" should receive a liberal construction.

In Briji Inder Singh Vs. Kanshi Ram, reported in 1917, AIR, PC, 156, it was observed that true guide for a Court to exercise the discretion under section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal.

In Shakuntala devi Jain Vs. Kuntal Kumari, reported in 1969, AIR, SC, 575, the Hon'ble Supreme Court held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.

In O.P.Kathpalia Vs. Lakhmir Singh, reported in 1984, AIR, SC, 1744, the Hon'ble Supreme Court held that if the refusal to condone the delay results in grave miscarriage of justice, it would be a ground to condone the delay.

In State of Haryana Vs. Chandramani, reported in 1996 SC, 1623, Hon'ble Supreme Court considered large number of its earlier judgments including Binor Bihari Singh Vs. Union of India, reported in (1993) 1 SCC, 572, M/s Shakambari and Co. Vs. Union of India, reported in (1993) Supp (1) SCC, 487, Warlu Vs. Gangotribai, reported in (1995) Supp (1) SCC, 37, Ramlal Motilal and Chhotelal Vs. Rewa Coalfields Ltd.,  reported in AIR, 1962, SC, 361, Concord of India Insurance Co. Ltd., Vs. Nirmala Devi, reported in AIR, 1979 SC, 1666, Lala Mata Din Vs. A. Narayanan, reported in AIR, 1970, SC, 1953, and held that expression "each day's delay must be explained", does not mean that a pedantic approach should be made and it must be applied in a rational common sense pragmatic manner."

In the result, the appeal is allowed. The order of the Tribunal dated 18.08.2003  and the order dated 21.06.2003 passed by Joint Commissioner (Appeal)-II, Trade Tax, Ghaziabad are set aside. The delay in filing the first appeal before the Joint Commissioner (Appeal)-II, Trade Tax, Ghaziabad is condoned and the Joint Commissioner (Appeal)-II, Trade Tax, Ghaziabad is directed to decide the appeal in accordance to the law.




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