TaxTMI 
TaxTMI 
2011 (1) TMI 1276
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....he application deserves to be rejected on this ground alone. Ms. Maithili Mehta, learned Assistant Government Pleader, invited the attention of the court to the averments made in the application, to submit that the delay that has been occasioned in filing the tax appeal has been sufficiently explained and as such, the same requires to be condoned in the interest of justice. It was submitted that the time taken in preferring the appeal is because of the procedure that is required to be followed in the administrative hierarchy which requires the proposal for filing the appeal to be scrutinized at various levels and as such, there was no negligence on the part of the respondent in preferring the tax appeal and that the applicant was bona fide pursuing the remedy of appeal. On the other hand, Mr. Manish K. Kaji, learned advocate for the respondent, raised a preliminary objection to the very maintainability of the application on the ground that the appeal has been preferred under section 78 of the Act which does not make any provision for condonation of delay and as such, the application is required to be rejected on this ground alone. The learned advocate placed reliance upon a decis....
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....t has failed to properly explain the delay of 110 days that had been caused in filing the tax appeal, and as such, even on this count, the application is required to be rejected. Dealing with the contentions as regards applicability of section 5 of the Limitation Act, Ms. Maithili Mehta, learned Assistant Government Pleader invited attention to the provisions of section 78 of the Act, which makes provision for "Appeal to High Court". Referring to sub-section (7) thereof, it was submitted that the same provides that in respect of matters not provided in the section, the provisions of the Code of Civil Procedure, 1908 (the Code), which applies to the second appeal to the High Court under section 100 of the Code shall, so far as may be, apply to the second appeal under the section. It was, accordingly, submitted that the provisions of the Code as applicable to second appeals to the High Court would apply to an appeal under section 78 of the Act. Referring to Order XLII of the Code, it was pointed out that rule 1 thereof provides that the rules of Order XLI shall apply, so far as may be, to appeals from appellate decrees. Referring to rule 3A of Order XLI of the Code, it was pointed ....
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.... provision is directory rather than mandatory in nature. Sub-section (7) of section 78 of the Act provides that in respect of such matters not provided under the section, the provisions of Code of Civil Procedure, 1908, which applies to the second appeal to High Court under section 100 of the said Code shall, so far as may be, apply to the second appeal under this section. Thus, the said provision provides that the provisions of the Code of Civil Procedure as applicable to second appeals to High Court under section 100 of the Code shall apply to second appeals under section 78 in respect of such matters not provided under the section. Section 100 of the Code provides for second appeals to the High Court, where the High Court is satisfied that the case involves a substantial question of law. The procedural provisions in respect of second appeal are provided under Order XLII of the Code, which deals with appeals from appellate decrees. Sub-rule (1) of Order XLII of the Code provides that rules of Order XLI shall apply, so far as may be, to appeals from appellate decrees. Rule 3A of Order XLI provides that when an appeal is presented after the expiry of the period of limitation specif....
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....ss-objections or making the application, within such period." Thus, section 84 of the Act provides for admitting any appeal or permitting filing of memorandum of cross-objection under section 73 of the Act by the appellate authority and admitting of an application under section 75 or section 78 by the Tribunal after the period of limitation laid down under the said sections, if the appellant or the applicant satisfies the appellate authority or the Tribunal, as the case may be, that he had sufficient cause for not preferring the appeal or filing the memorandum of cross-objections or making application within such period. Thus, section 84 of the Act provides for extension of period of limitation in relation to any appeal or cross-objections under section 73, and applications under sections 75 and 78 of the Act. Section 73 of the Act provides for an appeal from every original order, not being an order mentioned in section 74, passed under the Act or the rules, shall lie, (a) if the order is made by an Assistant Commissioner or Commercial Tax Officer or any other officer subordinate thereto, to the Deputy Commissioner, (b) if the order is made by a Deputy Commissioner, to the Joint ....
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.... section 78 of the Act provides for appeal (not application) to the High Court. No power is vested in the Tribunal under section 78 of the Act. Thus, if section 84 of the Act is construed literally, the same results into an absurdity, inasmuch as the words section 78 are rendered meaningless. It appears that though the intention of the Legislature was to make the provisions of section 84 applicable to appeals to the High Court under section 78 of the Act, due to some error on the part of the draftsman, the words "the High Court may admit an appeal" have been accidentally omitted before the words "under section 78". Since section 78 has in fact been included in section 84 of the Act, unless such an interpretation is adopted, namely, that the Legislature has through inadvertent error, left out the words "the High Court may admit an appeal" in the said provisions, the words "under section 78 of the Act" would become meaningless. Though it is not permissible to read words in a statute which are not there, but where the alternative lies between either supplying by implication words which appear to have been accidentally omitted, or adopting a construction which deprives certain existing....
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....rammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, by altering their collocation, by rejecting them altogether, or by interpolating other words, under the influence, no doubt, of an irresistible conviction that the Legislature could not possibly have intended what its words signify, and that the modifications thus made are mere corrections of careless language and really give the true meaning.' 54. Thus, in Surjit Singh Kalra v. Union of India [1991] 2 SCC 87 this court has observed that sometimes courts can supply words which have been accidentally omitted. 55. In G.P. Singh's Principles of Statutory Interpretation, 9th Edition, 2004 at pages 71-74 several decisions of this court and foreign courts have been referred to where the court has added words to a statute (though cautioning that normally this should not be don....
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....ng of the governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice-oriented process. The court should decide the matters on merits unless the case is hopelessly without merit. . ." In G. Ramegowda, Major v. Special Land Acquisition Officer [1988] 2 SCC 142, the Supreme Court held that no general principle saving the party from all mistakes of its counsel could be laid. The expression "sufficient cause" must receive a liberal construction so as to advance substantial justice and generally delays in preferring the appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of delay. In litigations to which Government is a party, there is yet another aspect which, perhaps, cannot be ignored. If appeals brought by Government are lost for such defaults, no person is individually affected ; but what, in the ultimate analysis, suffers is public interest. The decisions of Government are collective and institutional decisions and do not share the characteristics of decisions of private individuals. The law of limitation is, no d....