This revision under section 58 of the U.P. Value Added Tax Act, 2008 (hereinafter referred to as the 'Act'), is directed against the order dated 3rd July 2014 passed by the Tribunal in appeal No. 184 of 2014 condoning the delay in filing of the appeal by the Revenue and also the order dated 26th July 2014 (allegedly dispatched on 28th July 2014) rejecting the application for providing further opportunity of hearing.
It appears that against the penalty order dated 3rd January 2011 by the Assessing Authority, the revisionist herein, filed an appeal before the Additional Commissioner Grade II (Appeal)-5 Commercial Tax, Lucknow, which was allowed by order dated 5th May 2011. The Revenue took the matter in further appeal before the Tribunal. The appeal was filed on 23rd November 2011 along with the application for condonation of delay. It is stated in the application that the order of the appellate authority was received in the office of State representative on 13th July 2011 and, thus, after excluding the period of 90 days prescribed for filing appeal, there is only a delay of 43 days. In the application for condonation of delay, it is stated that the proposal for filing the second appeal was received in the office of the State representative on 31st October 2011 because the concerned clerk was on medical leave, and thus, the file was not available.
Learned counsel for the revisionist submitted that the impugned orders are manifestly illegal because of the fact that there was no proper explanation for the delay and the medical certificate or the leave application, which could be best evidence to show that the clerk was on medical leave, have not been brought on record. It is further contended that under section 19 of the Act, the limitation starts running from the date of service of the order on the aggrieved party and it is wholly immaterial when the State representative received the same. According to the revisionist, the judgment of the Ist Appellate Authority dated 5th May 2011 was received by the Appellate Authority on 8th June 2011. Accordingly, the limitation would start running from 8th June 2011. He has placed reliance on judgment of the Apex Court dated 24th March 2014 in Special Leave Petition (Civil) No. 6609-6613 of 2014 - Brijesh Kumar Versus State of Haryana.
I have considered the submissions made by learned counsel for the revisionist and perused the record.
Indisputably, the Ist Appellate Authority decided the appeal by judgment dated 5th May 2011. According to the revisionist, the copy of the judgment dated 5th May 2011 was received by the Assessing Authority on 8th June 2011 and, as such, the limitation would start running from the said date. However, according to the revenue, the judgment was received in the office of the State representative on 13th July 2011 and, thus, the limitation would start running from such date. However, even assuming that the copy of the order of the Appellate Authority was received by the Assessing Authority on 8th June 2011, I find that in the application for condonation of delay, it is specifically mentioned that the proposal for filing the second appeal was received in the office of the State representative on 31st October 2011. This is on account of concerned clerk being on medical leave. Consequently, the period anterior to the date of receipt of the proposal for filing the appeal was not of much relevance.
The main question which arises for consideration before this Court is whether in the facts and circumstances of the instant case, this Court should interfere in exercise of its revisional power under section 58 of the UP VAT Act, 2008, which extends only to correcting errors of law. It has been held by the Apex Court time and again that while deciding the application for condonation of delay, the Court should adopt liberal approach and should eschew technical objections. It has also been held that some amount of latitude is required to be given while considering the application for condonation of delay by the State as it is known that the State authorities are required to seek approvals at different levels before the matter could be agitated further. In this regard, reference may be made to the judgment of the Apex Court in the case of G. Ramegowda, Major and Ors. Versus Special Land Acquisition Officer, AIR 1988 SC 897 wherein, it is held as under: -
" Therefore, in assessing what, in a particular case, constitutes 'sufficient cause' for purposes of Section 5 it might, perhaps, be some what unrealistic to exclude from the considerations that go into the judicial verdict, these factors which are peculiar to and characteristic of the functioning of the Government. Governmental decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red-tape 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 a reasonable limits-is necessary if the judicial approach is not 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 decision making process."
Further, it has been held by the Apex Court in the case of N. Balakrishnan Versus M. Krishnamurthy, (1998)7 SCC 123 that once the Court deciding the application condones the delay, Superior Court should normally not interfere. It is held as under: -
"9. 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 limit. 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 whole untenable grounds or arbitrary or perverse."
Taking into consideration the law laid down by the Apex Court in this regard, I am of the opinion that this is not a fit case for interference in exercise of revisional jurisdiction.
As regards, the judgment of the Apex Court in the case of Brijesh Kumar (supra), it may be noted that therein there was inordinate delay of 10 years 2 months and 29 days in filing the appeal before the High Court. The application for condonation of delay was rejected by the High Court by recording categorical finding that sufficient grounds for condoning the delay do not exist. In the aforesaid background, the Apex Court held that in case delay is not properly and satisfactorily explained, the Court can not condone the delay on sympathetic grounds alone. However, in the facts of the instant case, the law laid down by the Apex Court in the said judgment is not attracted.
It is noticeable that revision under section 58 lies to this Court in special cases involving question of law. The order under challenge should be an order made under sub-section (7) or sub-section (8) of section 57 other than an order under sub-section (4) of that section summarily disposing the appeal. Sub-section (7) and (8) of section 58 are as under: -
"(7) The Tribunal may at any stage, after giving the appellant a reasonable opportunity of being heard, dismiss the appeal.
(8) The Tribunal may, if it has not already dismissed the appeal under sub-section (7), after calling for and examining the relevant records, and after giving the parties a reasonable opportunity of being heard or, as the case may be, after following the procedure prescribed under sub-section (5): [See Rule 63]
(a) confirm, cancel or vary such order; or
(b) set aside the order and direct the assessing or appellate or revising authority or the Commissioner as the case may be, to pass a fresh order after such further enquiry, if any, as may be specified; or
(c) order such amount of tax, fee or penalty or other money as may have been realized in excess of the due amount to be refunded according to the provisions of this Act."
An order condoning delay in filing the appeal is not an order covered by sub-section (7) or sub-section (8) of section 57. For the said reason as well, no interference is warranted in exercise of revisional jurisdiction.
Revision lacks merit and is dismissed.
(Manoj Kumar Gupta, J.) Dated: 13th October 2014 AM/-