TaxTMI 
TaxTMI 
2024 (8) TMI 827
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....rate at Vasco in dismissing the complaint in default and acquitting the Applicant/Accused. 4. Ms Razaq would submit that a complaint was lodged before the learned Magistrate which was registered as CR Case No. AOA/415/INC-TAX/2017 for the offence punishable under Sections 277 and 277A of the Income Tax Act against the Respondent/Accused. The process was issued against the Accused/Respondent and accordingly the matter was posted for hearing arguments. However, an order was passed on 17/10/2017 by the learned Magistrate dismissing the said complaint and acquitting the Accused since neither the Complainant nor Advocate for the Complainant appeared before the said Court. The learned Magistrate proceeded under Section 256 of the CrPC while dismissing the complaint and acquitting the Accused. 5. Ms Razaq would submit that the Applicant on a legal advice and bona fidely believing that the revision is maintainable, approach the learned Sessions Court by filing a revision and that too within limitation. The Respondent appeared and raised objections regarding maintainability of the said revision on the ground that since the Respondent was acquitted the remedy available is only by filing ap....
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....sual manner, contains vague statements and nowhere discloses sufficient cause. He would further submits that the pleadings with regard to sufficient cause must be precise and give the relevant details which are missing in the present application. 11. Mr Nankani would further submit that the order of the JMFC is dated 07/10/2017 whereas the revision was filed on 15/11/2017. There is no statement in the entire application that such revision was filed on a wrong advice. There are no details including the dates above the notes of the concerned Officer of the Department while processing the file. 12. Mr Nankani would submit that only because the Respondent raised objection to the tenability of revision would not in any manner give any opportunity to the Applicant to rethink about the maintainability of such proceeding. He would submit that when there is a statutory bar on filing any revision against order of acquittal pursuing such remedy would not in any manner give any reason for the Applicant to seek for condonation of delay. He submitted that when the remedy of revision was itself barred by statute and more particularly Section 401 (4) of CrPC the contention of the Applicant that ....
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....ectronics Ltd. v. IBEX Integrated Business Express (P) Ltd. 2023 SCC OnLine Bom 2776, Deena v. Bharat Singh (2002) 6 SCC 336, Rabindra Nath Samuel Dawson v. Sivakasi (1973) 3 SCC 381, Management of Associated Industries Ltd. v. Bipin Behari Singh[1971 SCC OnLine Gau 51], Radhe Shyam Khemka v. Raju Yadav [2020 SCC OnLine Chh 879], Radheshaym Mohanlal Kaitan v. Maharashtra Revenue Tribunal [1969 SCC OnLine Bom 7], Sakhichand Sahu v. Ishwar Dayal Sahu[1966 SCC OnLine Pat 111], Paras Ram v. Sheoji Ram[2010 SCC OnLine Del 1683]. Set III The State of Mysore Vs. Laxman Sharanappa Shiraguppi & Anr. [(1964) SCC Online Kar 55], Ajit Singh Thakur Singh & Anr. Vs. State of Gujarat [(1981) 1 Supreme Court Cases 495], Municipal Corporation of Delhi Vs. Amrit Lal [1980 SCC Online Del 304], V. Gopalkrishnan Nair, Assistant Commissioner of Income-Tax v/s/ Babarao Narhari Keshtwar and Another [1992 Mh.L.J.742], The State vs. Shri Mohammed Tahir [2018 SCC Online Cal 213] 16. In rejoinder, Ms. Razaq would submit that the matter pertains to the Income Tax Act and therefore it involves public interest. She submits that filing of revision itself within limitation shows a due diligence and bona fide ....
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....his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose. 19. In the case of Collector Land Acquisition, Anantnag & Anr. Vs. Mst. Katiji & Ors (1987 (2) SCC 107), the Apex Court observed 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 merits 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 hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because....
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....in time of limitation. 26. The appeal under Section 378 of CrPC is required to be filed within a period of 6 months along with leave to file appeal as provided under sub Section 4 of section 378. 27. The revision under Section 397 of CrPC was filed on 15/11/2017 thereby challenging the order of the Magistrate dated 07/10/2017. Thus, it is clear that the Applicant bona fidely believing that revision lies against the impugned order, filed it within the limitation, as provided under section 378 (5) of CrPC for filing appeal. 28. The application filed for condonation of delay before this Court which is supported by the affidavit of the Assistant Commissioner of Income Tax would clearly reveal in paragraph No.2 that the Applicant bona fidely preferred criminal revision challenging the impugned order dated 07/10/2017 as the complaint was dismissed for default of appearance of the complainant and his Counsel. Thus when revision is filed under Section 397, the contention of Mr Nankani that such revision was statutorily barred under section 401 (4) of CrPC, will have to be rejected firstly that such revision was not filed under section 401 of CrPC but was filed under section 397 of CrPC ....
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.... ignorance of law cannot be considered as ground for condoning the delay. Though he claims that there is statutory power under section 401 (4) of CrPC, such an aspect is already discussed and cannot be accepted. However it is admitted fact that the revision was filed under section 397 of CRPC before the learned Sessions Court, within time. It therefore shows that the Applicant was under the bona fide belief that a revision lies. Once such matter is filed and diligently prosecuted, it is presumed that the Applicant was under such bona fide belief about the maintainability of such proceedings. It cannot be argued that when no revision lies, filing of such revision would not be considered as bona fide attempt. There could be incorrect advise given to the Applicant who is an Officer of the Department and who is totally dependent on the advice of the legal team of the Department. The question here is not of wrong advise but whether the Applicant was under bona fide belief. Since the revision was filed challenging the impugned order and accordingly the Court has issued notice to the respondents, it clearly presumed that the Applicant was under the bona fide belief that revision lies. 34....
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....partment and thereafter forwarding the file to the Standing Counsel for preparing an appeal. It is necessary to note here that even during the above process, the revision file before the Sessions Court was pending. The Sessions Court did not pass any order on the revision with regard to its maintainability. Thus, the records show that though the revision was pending, the Applicant processed the file on the objection of the maintainability of the revision raised by the Respondents and then decided to file an appeal. 38. Since the Applicant is a Department and the decision has to be taken in consultation with the various officers including the Legal Department, it is expected that some time is required to be consumed. However the application clearly goes to show that all the papers were furnished to the Department by 15/03/2019 and thereafter such papers were forwarded to the Standing Counsel who prepared the draft and forward it by e-mail to the Department on 30/03/2019 that is within 2 weeks. The appeal along with the present application was immediately filed on the next day. 39. With these factual matrix, the decisions referred on behalf of the respondents will have to be consid....
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....ssary to answer the purpose intended. The word sufficient embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the case, duly examined from the viewpoint of reasonable standard of a cautious man. In other words "sufficient cause" means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has "not acted diligently" or "remained inactive". (K) The expression "sufficient cause" contained in section 5 of the Limitation Act is elastic enough to yield different results depending upon the object and context of a statute. (L) It is very elementary and well understood that courts should not adopt an injustice-oriented approach in dealing with the applications for condonation of the delay in filing appeals and rather follow a pragmatic line to advance substantial justice. (M) The Courts have to adopt a very liberal approach in construing the phrase 'sufficient cause' used in Section 5 of the Limitation Act in order to condone the delay to enable the Courts to do substantial jus....
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....st substantial justice. 43. Second set of decisions referred to by Mr Nankani are basically with regard to powers under Section 14 of the Limited Act. It is not the case of the Applicant that the entire delay was occasioned because the Applicant was bona fidely litigating before the wrong Forum. Admittedly, revision was filed within time and when it is pointed out to the Applicant that the revision is not tenable, suitable action was taken and appeal was filed with the application for condonation of delay. 44. Section 14 of the Limitation Act reads thus: 14. Exclusion of time of proceeding bona fide in court without jurisdiction.-(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (2) In computing the period of limitation for any application, the time during which the applicant h....
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....der Section 14 of the Limitation Act, the ingredients which are required to be made are as under: (1) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party; (2) the prior proceeding had been prosecuted with due diligence and good faith; (3) the failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature; (4) the earlier proceeding and the later proceeding must relate to the same matter in issue, and (5) both the proceedings are in a court. 49. The above ingredients as observed by the Apex Court are squarely applicable to the matter in hand. Therefore, the contention of the Applicant even on this count will have to be considered that the Applicant was bona fidely litigating before the wrong Forum. 50. Though the present matter deals with a criminal complaint and more specifically the order of the Magistrate shows that the Accused / Respondent is acquitted, the fact remains that such acquittal is without any full-fledged trial and only on the absence of the complainant. In such circumstances, the Court must adopt a pragmatic approach specifically when the case is of unwarranted acquittal which coul....