1988 (4) TMI 413

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....record, the Tribunal was justified in holding that the applicant was negligent in not preferring the appeal in time?" 2.. The statement of the case, as received, is as follows: The applicant was assessed to tax for the period 1st October 1973 to 30th September, 1974. He preferred the first appeal against the best judgment assessment before the Appellate Assistant Commissioner of Sales Tax, Indore, which was disallowed. A second appeal was preferred before the Tribunal. First appellate order was communicated to the applicant on 19th February, 1979. The appeal was sent by registered post on 20th April, 1979 and was received by the Tribunal on 24th April, 1979. Delay of 4 days had taken place as under section 38(4) of the Act an appeal h....

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....R 1969 SC 575. Though in written submissions, the authority of the Apex Court in the State of West Bengal v. Administrator, Howrah Municipality AIR 1972 SC 749 has not been relied upon, but we considered the same also, as it is mentioned in statement of the case. 4.. On behalf of the Commissioner of Sales Tax, we heard the Additional Commissioner of Sales Tax, who was present in person. He supported the decision of the Tribunal rejecting the prayer for condonation of delay. 5.. The facts stated above, in our opinion, do not make out any case for making a reference under section 44(1) of the Act, as the question of condonation of delay is purely a question of fact and exercise of the discretion to condone or not to condone the delay, i....

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....sion. It is true, that the department has not filed any counter-affidavit in rebuttal but that does not mean that the Tribunal is bound to accept the affidavit and the medical certificate filed in the case. While assessing the value to be attached to the affidavit and the medical certificate, the Tribunal rightly came to the conclusion that the assessee acted negligently and there was no sufficient cause to condone delay. It is settled law that the Judges are not computers in assessing the value to be attached to evidence before them to consider the material or the evidence placed before them on the basis of probabilities (see Chaturbhuj Pande v. Collector, Raigarh AIR 1969 SC 255). 7.. We have considered the authorities of the Apex Cour....