Laul's India Limited vs State of Haryana

Ajay Kumar Mittal, J.

C.M. No. 10538-CII of 2013 This is an application u/s 149 of the CPC for making/affixing remaining court fee stamps.

Application is allowed and the applicant is permitted to make good the deficiency in court fee.

RA-CR No. 60-CII of 2013 (O & M)

This application has been filed by the petitioner under Order 47 Rule 1 read with Section 151 of the CPC for review of the order dated 25.2.2010 passed in GSTR No. 7 of 2001 whereby this Court had declined to answer the reference and returned the same unanswered.

A few facts necessary for adjudication of the present review application as narrated therein may be noticed. The petitioner made supplies of railway track material to Indian Railways under one work order. The said supplies were spread over in a number of years. As per supply order, the contract rate would be subject to price variation based on RBI Index Number of whole sale prices pertaining to Ferro Alloys, Fuel, Power, Light and Lubricants as per formula specified therein. The assessing authority while framing assessment for the year 1993-94 found that the dealer had not disclosed sales worth Rs. 16,29,678/- in the returns filed. These sales were on account of escalation charges but were received during the assessment year 1994-95 and were assessed to tax on 15.10.1997. Accordingly, the assessing authority issued a notice to the dealer and vide order dated 16.1.1998 imposed a penalty of Rs. 1,30,500/- u/s 48 of the Haryana General Sales Tax Act, 1973 (in short "the Act"). Feeling aggrieved, the dealer filed an appeal before the Joint Excise and Taxation Commissioner (Appeals) [for brevity "the JETC(A)"] who vide order dated 30.6.1998 set aside the order of the assessing authority and remanded the case for a fresh decision with a direction that escalation charges had to be added to the turnover of the assessment year to which such supplies were related. However, the JETC(A) reviewed its order dated 30.6.1998 and relying upon the judgment of Orissa High Court in Bisra Stone Lime Co. Limited Vs. Sales Tax Officer and Others, vide order dated 18.1.1999 held that the escalation charges were to be added during the assessment year in which such charges were received by the dealer and also upheld the penalty. The petitioner challenged the order dated 18.1.1999 before the Sales Tax Tribunal (hereinafter referred to as "the Tribunal"). The Tribunal vide order dated 25.4.2000 dismissal the appeal and upheld the orders of the authorities. Thereafter, the petitioner moved an application before the Tribunal u/s 42(1) of the Act. The Tribunal referred the following question of law for opinion of this Court:-

"Whether in the facts and circumstances of the case, the assessee has any obligation to declare the income accruing in the subsequent year but on account of sale in the preceding year in the taxable turnover, and if yes, when?"

The reference sent by the Tribunal was numbered as GSTR No. 7 of 2001. As no one had put in appearance before this Court, this Court vide order dated 25.2.2010 declined to answer the reference and accordingly returned the same unanswered. Thereafter, the petitioner moved an application bearing CM No. 2371-CII of 2013 for recalling of the above mentioned reference by recalling the order dated 25.2.2010 passed by this Court. On 15.2.2013, counsel for the petitioner sought permission of this Court to withdraw CM No. 2371-CII of 2013 as he wanted to file proper review petition. Accordingly, the said application was dismissed as withdrawn vide order dated 15.2.2013. Hence, the present review application. Since, the review application was barred by time, an application bearing CM No. 10539-CII of 2013 u/s 5 of the Limitation Act, 1963 (in short, the "1963 Act") has been filed for condonation of 1127 days'' delay in filing the review application.

We have heard learned counsel for the parties.

The primary question that arises for consideration in this petition is whether there was sufficient cause for condonation of delay in filing the review petition before this Court.

Examining the legal position relating to condonation of delay u/s 5 of the 1963 Act, it may be observed that the Hon''ble Supreme Court in Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation and Another, laying down the broad principles for adjudicating the issue of condonation of delay, in paras 14 & 15 observed as under:-

"14. We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.

The expression "sufficient cause" employed in Section 5 of the Indian Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate-Collector (L.A.) v. Katiji N. Balakrishnan v. M. Krishnamurthy and Vedabai v. Shantaram Baburao Patil."

It was further noticed by the Hon''ble Apex Court in R.B. Ramlingam Vs. R.B. Bhvaneswari, as under:-

".....It is not necessary at this stage to discuss each and every judgment cited before us for the simple reason that Section 5 of the Limitation Act, 1963 does not lay down any standard or objective test. The test of "sufficient cause" is purely an individualistic test. It is not an objective test. Therefore, no two cases can be treated alike. The statute of limitation has left the concept of "sufficient cause" delightfully undefined, thereby leaving to the Court a well-intentioned discretion to decide the individual cases whether circumstances exist establishing sufficient cause. There are no categories of sufficient cause. The categories of sufficient cause are never exhausted. Each case spells out a unique experience to be dealt with by the Court as such."

It was also recorded that:-

"For the aforestated reasons, we hold that in each and every case the Court has to examine whether delay in filing the SLP stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition...."

From the above, it emerges that the law of limitation has been enacted which is based on public policy so as to prescribe time limit for availing legal remedy for redressal of the injury caused. The purpose behind enacting law of limitation is not to destroy the rights of the parties but to see that the uncertainty should not prevail for unlimited period. u/s 5 of the 1963 Act, the courts are empowered to condone the delay where a party approaching the court belatedly shows sufficient cause for not availing the remedy within the prescribed period. The meaning to be assigned to the expression "sufficient cause" occurring in Section 5 of the 1963 Act should be such so as to do substantial justice between the parties. The existence of sufficient cause depends upon facts of each case and no hard and fast rule can be applied in deciding such cases.

The Hon''ble Apex Court in Oriental Aroma Chemical Industries Ltd. and R.B. Ramlingam''s cases (supra) noticed that the courts should adopt liberal approach where delay is of short period whereas the proof required should be strict where the delay is inordinate. Further, it was also observed that judgments dealing with the condonation of delay may not lay down any standard or objective test but is purely an individualistic test. The court is required to examine while adjudicating the matter relating to condonation of delay on exercising judicial discretion on individual facts involved therein. There does not exist any exhaustive list constituting sufficient cause. The applicant/petitioner is required to establish that inspite of acting with due care and caution, the delay had occurred due to circumstances beyond his control and was inevitable.

Adverting to the factual matrix in this case, we do not find any merit in the application. The question regarding whether there is sufficient cause or not depends upon each case and primarily is a question of fact to be considered taking into totality of events which had taken place in a particular case. According to the learned counsel for the petitioner, in July, 2012, the applicant-petitioner requested the counsel to verify the status of the case from where they came to know that the said reference has been returned unanswered on 25.2.2010. Thereafter, immediate steps were taken to file the application but the same was rejected. Thereafter, application for recalling the order dated 25.2.2010 was filed. The said application was also dismissed as withdrawn by this Court vide order dated 15.2.2013. After that, the review application was filed which was barred by 1127 days. Learned counsel further argued that the delay was unintentional and due to the circumstances beyond the control of the petitioner.

In the present case after appreciating the matter it cannot be said that there was sufficient cause for condonation of delay. The reference was returned unanswered by this Court vide order dated 25.2.2010. Thereafter, the application for recalling the said order dated 25.2.2010 was filed which was also dismissed as withdrawn vide order dated 15.2.2013. However, the review application was filed before this Court on 26.4.2013, after a delay of 1127 days. The applicant-petitioner has not furnished any particulars of events that have taken place whereby inordinate delay in filing of review petition has occurred. The applicant-petitioner has vaguely tried to substantiate the plea that there existed sufficient cause for condoning colossal delay of 1127 days in filing the review petition without furnishing sequence of events in detail.

In view of the above, finding no merit in the application u/s 5 of the 1963 Act, the application for condonation of delay is dismissed and consequently, the review petition is dismissed as time barred.