J.M. Bhansali and Others vs The State of Madras and Another

Veeraswami, J.—Different assessees filed these petitions from a common order of the Tribunal, which, agreeing with the Appellate Assistant

Commissioner, held that no sufficient cause was shown to excuse the delay in filing the appeal. The assessment orders were received by the

assessees on different dates, in April 1959, and in one case in May 1959. They filed writ petitions on April 25, directed against these orders

except in the case in which the date of filing was May 26, 1959. This Court disposed of the writ petitions on 26-4-1962, except one of them

which was disposed of on 9-11-1961. Appeals were filed on 26-5-1962 but one of them on 5th June 1962. It appears as the Department would

have it, the appeal petitions were returned for compliance but they were represented only at the end of January 1963. Thus there has been a delay

in each case of about three years.

We are unable to share the view of the Tribunal or the Appellate Asst. Commissioner that in the circumstances of these cases, sufficient cause

was not shown. In deciding the question, the most relevant factor to be taken into account is whether the party concerned has bona fide

prosecuted some other proceeding because of which delay has occurred in filing the appeal. It may be that, in selecting a particular remedy, the

party may have been ill-advised. The test is not whether in law the other remedy prosecuted is legally correct and justifiable. There may however

he cases where, ex facie, the remedy chosen by the assessees is unjustified and may show lack of bona fides. These are not such cases. There are

no circumstances or facts in these case to assume that when the assessees invoked Article 226 of the Constitution and sought the assistance of this

Court to quash the assessment orders, they acted otherwise than bona fide. We are inclined to think that they must have honestly believed, perhaps

on advice, that they could get the relief they wanted in the writ petitions. Writ petitions are no doubt, not encouraged when alternative remedies are

available. But the exercise of the discretion by the various High Courts in this matter has not been uniform, though certain propositions in regard to

that matter may be considered to have got recently settled. We cannot as we think approach the question of sufficient cause from the result of the

writ petitions either. No doubt there was a delay of about thirty days in filing the appeals even after the result of the writ petitions was known. But

that, in the circumstances, is explainable. Apparently, they were waiting for copies of the orders of the High Court in the writ petitions. The long

delay we are inclined to think, in filing the appeals was more due to the time taken by the pendency of the writ petitions in this Court.

We are of opinion that, on the facts and circumstances of these cases, the delay ought to have been condoned. The petitions are allowed. The

orders of the appellate Assistant Commissioner and of the Tribunal are set aside and the Appellate Assistant Commissioner is directed to take the

appeals on his file and dispose of them in accordance with law. No costs.