TaxTMI 
TaxTMI 
2012 (9) TMI 888
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..... Consequently the appeal was not entertained as hit by limitation. The facts of the case are that the State Government notified on or about July 6, 1989 the Rajasthan Sales Tax New Incentive Scheme, 1989 (hereinafter "the 1989 Scheme"). The petitioner-company is stated to have established a new industrial unit in State of Rajasthan covered under the 1989 Scheme for manufacturing cement and clinker by investing Rs. 632.67 crores as fixed capital investment. The unit commenced commercial production on May 25, 1997. The 1989 Scheme provided for exemption from payment of tax in varying percentages dependent on the extent of eligible fixed capital investment (hereinafter "the EFCI") certified by the State Level Screening Committee (hereinafter "the SLSC"). The EFCI was to be calculated as provided for in the 1989 Scheme. The petitioner-company is stated to have made an application to the SLSC on or about October 29, 1997 under the 1989 Scheme claiming for a grant of eligibility certificate for EFCI of Rs. 532.52 crores. In the first instance the SLSC vide order dated January 15, 1998 accepted EFCI only to an extent of Rs. 55.35 crores, further holding that the petitioner-company was....
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....me under order dated March 5, 1999 passed by the SLSC, challenged the same before the Tax Board. The Tax Board under its order dated November 16, 1999 again remanded the matter to the SLSC directing it to re-consider the EFCI to which the petitioner-company claimed to be entitled to. The SLSC however on consideration of the matter subsequent to the last remand by the Board, vide order dated October 21, 2000 maintained its earlier order dated March 5, 1999 approving the EFCI's computation at Rs. 280.47 crores. The order dated October 21, 2000 passed by the SLSC was admittedly conveyed to the petitioner-company under covering letter dated November 20, 2000. An appeal was filed on September 16, 2011 under clause 6 of the 1989 Scheme to the Tax Board against the order dated October 21, 2000, as conveyed under covering letter dated November 20, 2000. The said appeal was accompanied by an application for condonation of delay. The application for condonation of delay has been dismissed by the Tax Board. The Tax Board has held that from the record before it, the application for condonation of delay was liable to be dismissed in view of the fact that even while the petitioner-comp....
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....cient cause, to be recorded into writing, extend the period or periods but not exceeding 90 days in aggregate. (iii) The appropriate screening committee, may after making or causing to be made such enquiry as it considers necessary and after giving reasonable opportunity of being heard to the industrial unit, the assessing authority and Commissioner or any officer authorised by him in this behalf, pass such orders thereon as the circumstances of the case justify, including an order confirming, amending, suspending or cancelling the order or reopening the case and directing for fresh decision of the case." The petitioner-company states that as per past practice no receipt of filing of the review application dated December 13, 2000 was given to or obtained by the petitioner-company. It is thereafter an admitted case that for a period of about six years till December 1, 2006, no steps were taken by the petitioner-company to pursue its purported review application dated December 13, 2000 before the SLSC-albeit not addressed to the SLSC but purportedly to the Principal Secretary, Industries, who was the ex officio Chairman of the SLSC. On December 1, 2006, the petitioner-company s....
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....n December 13, 2000. As the matter thus stood, the petitioner-company was visited with a demand letter dated May 14, 2008 issued by the Commercial Tax Officer stating that the sanctioned EFCI Rs. 280.47 under SLSC's order dated March 5, 1999 having been exhausted by the petitioner-company, it would henceforth be under an obligation to commence depositing the full amount of tax due with effect from May 1, 2008. The demand letter dated May 14, 2008 was followed by demand notice dated May 19, 2008 under the Rajasthan Value Added Tax Act, 2003. Aggrieved of the demand letter dated May 14, 2008 and demand notice dated May 19, 2008, the petitioner-company filed a Writ Petition No. 5167 of 2008 Reported as Binani Cement Limited. v. State of Rajasthan [2013] 57 VST 129 (Raj). before the Rajasthan High Court at Jaipur Bench. The case of the company in the writ petition was that in spite of filing of an application for review dated December 13, 2000 against the decision of the SLSC dated October 21, 2000, the respondents continued to dither and delay addressing the said review petition in spite of the petitioner-company's reminders dated December 1, 2006, March 8, 2007, March 7....
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....ubmitted that the application not only suffers from glaring defects, the same is hopelessly misconceived as well, for the reason that the petitioner-unit ought to have challenged the decision dated November 20, 2000 by way of filing an appeal before the Tax Board. Since the application was misplaced filed under a wrong pretext and addressed to the wrong authority, therefore no decision could be taken on the aforementioned application. The petitioner-unit is now attempting to benefit out of a wrong committed by them more than seven years ago. In the entire body of the writ petition the petitioner-unit has not indicated any reason whatsoever, which prevented them from approaching the appropriate authority in view of the fact that no decision had been taken on the so-called review application. Since the SLSC had already reviewed the matter of EFCI not once but twice and that too after giving a reasoned order well supported by the conclusions and basis thereof, the petitioner if aggrieved, was left with only option to approach the appellate authority, i.e., the Rajasthan Tax Board." It is submitted that during pendency of Writ Petition No. 5167 of 2008 Reported as Binani Cement Limi....
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....rom the Industries Department, to which the review application dated December 13, 2000 had allegedly been sent, that no such application for reconsideration/review had been filed by the petitioner-company and that consequently, it was not possible to reconsider the request of the petitioner-company for recomputation and enhancement of the EFCI. The petitioner-company again vide letter dated June 3, 2011 is stated to have made an application for reconsideration of the decision of the SLSC on March 17, 2011 communicated to it under letter dated April 29, 2011. Following the decision of the SLSC taken during the pendency of Writ Petition No. 5167 of 20081 before this court at its meeting of March 17, 2011 and conveyed as aforesaid vide letter dated April 29, 2011, a miscellaneous application was filed by the respondent-State in the pending Writ Petition No. 5167 of 2008 Reported as Binani Cement Limited. v. State of Rajasthan [2013] 57 VST 129 (Raj). on or about July 19, 2011 stating that in the facts as they then transpired, relief prayed in the writ petition premised on the purported undecided application for review filed allegedly on December 13, 2000 could not be granted and co....
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....September 20, 2011 had been passed without determining the question of limitation. It was stated that in view of the order dated September 5, 2011 Reported as Binani Cement Limited. v. State of Rajasthan [2013] 57 VST 129 (Raj). passed by the High Court in Writ Petition No. 5167 of 2008, the petitioner-company was only entitled to condonation of delay on its application for the purpose only for the period of the pendency of the Writ Petition No. 5167 of 20081 before the High Court, i.e., May 21, 2008 to September 16, 2011. It was submitted that the issue of condonation of delay in filing the appeal prior to filing of writ petition before the High Court be first considered on the application for condonation of delay before the address of the appeal against SLSC's order dated October 21, 2000 on merits. On the aforesaid submission of the Deputy Government Advocate and also as warranted under section 3 of the Limitation Act, 1963, the matter was posted for October 12, 2011 before the Division Bench of the Board, for hearing. The case of the petitioner-company before the Board was that the objection with regard to limitation in filing of the appeal under clause 6 of the Incentiv....
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....d be entertained. It was submitted that in the facts of the case on record, there was no delay whatsoever in filing of appeal, as the cause of action for filing the appeal would have arisen only on communication of SLSC's decision on the application dated December 13, 2000, which was never done till the letter dated April 29, 2011 communicating the decision of the SLSC holding that the application dated December 13, 2000 had never been received by the SLSC. It was submitted that the application dated December 13, 2000 for reconsideration of the order dated October 21, 2000, having been kept dormant and not considered by the SLSC for years in spite of several reminders, the petitioner-company could not be said to be negligent or lethargic in pursuing its remedies for vindication of its rights. In this view of the matter, it was argued before the Tax Board that the delay if any found ought to be condoned and the appeal ought to be heard by the Tax Board on merits or else the petitioner-company would suffer grave irreparable loss on count of its remedy against a very substantial injustice being foreclosed. Per contra, on behalf of the State it was submitted that the appeal file....
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....ng before this court, i.e., from May 21, 2008 to September 5, 2011. It was also submitted that even excluding the period May 21, 2008 to September 5, 2011, when Writ Petition No. 5167 of 20081 was pending before this court, the appeal was vitiated by an unexplained seven years inordinate delay and facts on record did not constitute sufficient cause for the Board to condone the delay in filing the appeal and to consider the appeal on merits. The State also submitted before the Board that the application dated December 1, 2006 filed by the petitioner-company recording dissatisfaction with order dated October 21, 2000 passed by the SLSC fixing EFCI at Rs. 280.47 crores and requesting review thereof was grossly delayed, and consequently vide letter dated February 8, 2007 the petitioner-company was informed that the application for reconsideration of the order dated October 21, 2000 having been filed beyond the period of sixty days as provided under clause 5A of the 1989 Scheme, it was not deserving of consideration. It was further submitted that the order dated February 8, 2007 would have on its own also occasioned a clear cut cause of action to the petitioner-company to take its re....
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....der clause 6 of the Incentive Scheme, 1989 within a period of sixty days of the communication of the impugned order dated October 21, 2000 as mandated in clause 6 of the 1989 Scheme. In the Board's consideration, the petitioner-company having thus failed to explain the inordinate delay of about seven years from November 20, 2000 to May 21, 2008 (period prior to the matter being put to consideration of the High Court in SBCWP No. 5167 of 2008 Reported as Binani Cement Limited. v. State of Rajasthan [2013] 57 VST 129 (Raj).) in challenging the order dated October 21, 2000 passed by the SLSC, the petitioner-company was not entitled for condonation of delay in filing the appeal. The appeal thus stood dismissed as having been filed beyond limitation. Mr. Sudhir Gupta, learned senior advocate appearing along with Mr.Vivek Singhal and Sachin Mehta on behalf of the petitioner-company has submitted that the impugned order dated October 24, 2011 passed by the Board is liable to be quashed and set aside by this court as the said order is erroneous, arbitrary, perverse and more importantly in defiance and contrary to the directions of this court in Writ Petition No. 5167 of 2008 Reporte....
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....of Rajasthan [2013] 57 VST 129 (Raj). and that annexures 15A to 15G filed by the petitioner-company before the Tax Board ought to have been sufficient for the Tax Board to arrive at a conclusion that the application for review against the order dated October 21, 2000 had been filed on December 13, 2000the non-address whereof was ultimately the cause of filing an appeal on September 16, 2011 before the Tax Board against SLSC's order dated October 21, 2000. Mr. Sudhir Gupta, learned senior advocate, has relied upon a judgment in the case of Collector, Land Acquisition, Anantnag v. Mst. Katiji [1987] 66 STC 228 (SC); [1987] 167 ITR 471 (SC); [1987] 62 Comp Cas 370 (SC); [1987] 2 SCC 107, wherein the honourable apex court has emphasised on the purpose of section 5 of the Limitation Act, 1963 being to enable the courts to do substantial justice to parties in disposing the matter on merits. Dealing with the expression "sufficient cause", the honourable apex court has held that the expression "sufficient cause" is adequately elastic to facilitate the courts to apply the law in a meaningful manner to subserve the ends of justice. Expounding on the need to take a liberal view in cons....
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....ean against rejection of the explanation of delay. Reliance has also been placed on Apangshu Mohan Lodh v. State of Tripura [2004] 1 SCC 119 wherein the honourable apex court has reiterated that the power under section 5 of the Limitation Act is discretionary with the object to address the matter on merits, hence the power to condone delay should be liberally exercised. Per contra, Mr. G.S. Bapna, the learned Advocate-General appearing along with Mr. Sarvesh Jain on behalf of the State would submit that the impugned order dated October 24, 2011 passed by the Tax Board is a well considered order rooted in a specific finding of fact by the Tax Board that admittedly the petitioner-company had no proof of filing any application for review on December 13, 2000. It has been submitted that the Tax Board has also itself gone through the record of the case before the SLSC and considered the letter of the Industries Department and thereafter come to a specific finding of fact that no application under clause 5A of the 1989 Scheme for review of the order dated October 21, 2000 was ever filed by the petitioner-company. It has been further submitted that contrary to the petitioner-company....
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....d September 5, 2011 it only observed that the petitioner-company would be entitled for the condonation of delay in filing the appeal only for the duration of pendency of writ petition before the High Court, (i.e., from May 21, 2008 to September 5, 2011) and not for the whole of the length of time in issue-for filing of the appeal before the Tax Board. The learned Advocate-General has also drawn the attention of this court to the preliminary objections, more particularly para No. 2, in reply to Writ Petition No. 5167 of 2008 Reported as Binani Cement Limited. v. State of Rajasthan [2013] 57 VST 129 (Raj). pertaining to the maintainability of the writ petition, wherein it was stated by the State that submissions made by the petitioner regarding filing of representation dated December 13, 2000 were seriously disputed, as the SLSC had never received any such application for alleged grievance/review against the order dated October 21, 2000 and that there was thus no occasion for the SLSC to adjudicate upon the said representation/application dated December 13, 2000. It has been further submitted that thereafter the SLSC in its meeting dated March 17, 2011 (occasioned by allegations i....
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....ly with a full time legal Department. It is submitted that the petitioner-company had earlier in the year 1998 filed two review applications under clause 5A of the 1989 Scheme, and each of the two review applications were properly submitted and addressed to the competent authority-cum-Commissioner Industries, i.e., Member Secretary of the SLSC and a specific mention of clause 5A of the 1989 Scheme was made therein. The said two applications have been annexed as exhibits RA-6 and RA-7, respectively, along with the additional affidavit filed on behalf of the State. It has been submitted that even subsequently the petitioner-company filed an application for review against the order dated March 17, 2011 conveyed to the petitioner-company vide letter dated April 29, 2011, holding that the no application dated December 13, 2000 had been received. It is submitted that even in this review application reference was clearly made to clause 5A of the 1989 Scheme and it was addressed to the Commissioner Industries-Member Secretary, SLSC. In the aforesaid facts, the learned Advocate-General has submitted that while both before December 13, 2000 and after December 13, 2000 proper review applicati....
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....f the Rajasthan Value Added Tax Act. It is submitted that this court can exercise its revisional power only on a question of law and the revision petition as filed by the petitioner-company involves no question of law as the issue of the petitioner-company's entitlement to condonation of delay on sufficient cause being found is a question of mere fact. The learned Advocate-General has submitted that no perversity in the finding of fact arrived at by the Tax Board with regard to non-filing of application on December 13, 2000 and absence of "sufficient cause" can be found in the impugned judgment dated October 24, 2011. It is submitted that the Tax Board has come to a factual conclusion based on record and facts pleaded before it as also on scrutiny of the record before it as to lack of sufficient cause for filing an inordinate delayed appeal after about seven years as the petitioner-company could not even establish that it had filed review application under clause 5A of the 1989 Scheme on December 13, 2000. It is submitted that similarly the conclusion of the Tax Board that from the record of SLSC no application for review under clause 5A of the 1989 Scheme appeared to have been....
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....court should adopt a pragmatic approach making a distinction where the delay is inordinate and where the delay is only of a few days. It is submitted that the honourable apex court has held that where the delay is inordinate, consideration of prejudice to the other side is a relevant factor. It is submitted that the honourable Supreme Court in Manindra Land and Building Corporation Ltd. v. Bhutnath Banerjee AIR 1964 SC 1336 has held that a finding of fact as to existence of sufficient cause or otherwise in presenting an application for condonation of delay is finding of fact, which cannot be interfered with in exercise of powers of revision-in that case under section 115, CPC. Having heard learned counsel for the parties and having perused the impugned judgment dated October 24, 2011, passed by the Tax Board, I am of view that the fulcrum of petitioner-company's case turns on the question as to whether the application under clause 5A of the 1989 Scheme for review of order dated October 21, 2000 passed by the SLSC was indeed filed by the petitioner-company on December 13, 2000. The lynchpin argument of petitioner-company lies in the purported admission by the respondent-State....
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....SLSC or the Industries Department. Aside of the failings in the reply to Writ Petition No. 5167 of 20081 filed by the State, in my considered opinion there is in no event an unequivocal admission therein that the application for review of the order dated October 21, 2000 under clause 5A of the 1989 Scheme was filed and reviewed on December 13, 2000. The best evidence with regard to filing of the purported application on December 13, 2000 before the Commissioner Industries-cum-Member Secretary, SLSC should have come from the petitioner-company. It did not. Adverse inference under section 114(g) of the Evidence Act thus operates against the petitioner-company. It has been at all times the petitioner-company's admitted case as before the SLSC's meeting on March 17, 2011 as also before the Tax Board in the course of consideration of application for condonation of delay and also before this court in the present revision petition, that it has no proof of filing of application on December 13, 2000. Escape from the obligation to produce the best evidence is sought on the pretext of the SLSC never giving receipts of application filed before it. That however is a tenuous argument at ....
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...., 2011 in the manner earlier detailed in this judgment. In the case of Sita Ram Bhau Patil v. Ramchandra Nago Patil [1977] 2 SCC 49, the honourable apex court has held that an admission to be binding must be clear and unequivocal and not ambiguous. No such situation obtains in the present case with regard to the filing of the review application on December 13, 2000 on the basis of the reply of the State to SBCWP No. 5167 of 2008 . This court while dismissing S.B. Writ Petition No. 5167 of 2008 on September 5, 2011 Reported as Binani Cement Limited. v. State of Rajasthan [2013] 57 VST 129 (Raj). allowed the petitioner-company to lay an appeal against the order dated October 21, 2000 passed by the SLSC to the Tax Board accompanied by an application for condonation of delay with a limited direction for condoning the delay in filing of the appeal for the duration of the pendency of Writ Petition No. 5167 of 20081 between May 21, 2008 to September 5, 2011. There was no direction from the learned Single Judge to condone whole of the delay. The matter was to be considered by the Board on its own facts and supporting material. In my considered opinion the public policy underlying the Li....
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.... rule against "false pleas" as enunciated in Binod Bihari Singh [1993] 1 SCC 572 and "inordinate delay" indicative of lack of vigilance, lethargy and reckless negligence. In the instant case there was an inordinate delay of about 11 years in filing the appeal before the Tax Board on September 16, 2011 under clause 6 of the 1989 Scheme against the SLSC's order dated October 21, 2000. However in terms of direction of this court in Writ Petition No. 5167 of 2008 Reported as Binani Cement Limited. v. State of Rajasthan [2013] 57 VST 129 (Raj). decided on September 5, 2011, the petitioner-company was entitled to condonation of delay for the period of between May 21, 2008 and September 5, 2011, when S.B. Writ Petition No. 5167 of 2008 Reported as Binani Cement Limited. v. State of Rajasthan [2013] 57 VST 129 (Raj). was pending before this court. Even otherwise under section 14 of the Limitation Act, the petitioner-company would have been entitled to the same relief. The question however remains as to whether the petitioner-company was able to set up a case before the Tax Board for condonation of delay beyond the period of 60 days following the receipt of SLSC's order dated Octobe....
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....arlu v. State of Andhra Pradesh [2011] 4 SCC 363 the honourable Supreme Court has held that the recommended "liberal approach" in considering the sufficiency of cause for condonation of delay in taking legal proceedings beyond statutorily prescribed limitation should not override the substantial law of limitation, specially when courts find no justification for the delay. It has been held that the courts, including the Supreme Court, no doubt have recommended "liberal approach" in considering applications for condonation of delay, yet the concepts such as "liberal approach" "justice oriented approach" and "substantial justice" cannot be employed to jettison the substantial law of limitation-especially when on facts the authority before which application under section 5 of the Limitation Act is filed, finds no justification for the delay. It has been held that while considering the application under section 5 of the Limitation Act, the courts do not enjoy unlimited and unbridled discretionary powers and the discretion has to be exercised within reasonable bounds. It has been further held that the discretion under section 5 of the Limitation Act has to be systematically exercised dul....