Prestige Hosieries vs State of Tamil Nadu

Thanikkachalam, J.—The assessee is the petitioner. After the order was pronounced by the Appellate Assistant commissioner, the assessee

filed an appeal before the Appellate Tribunal. Department sought to file application for enhancement. There was a delay of 209 days in filing the

alleged affidavit stating that the ""C"" form was received in the office on December 16, 1991 and there has been administrative delay. Hence, it was

prayed that the delay of 209 days should be condoned. The Tribunal pointed out that the substantial explanation offered by the Additional State

Representative is administrative delay. According to the Tribunal the delay has been substantially explained. It is also mentioned in the order of the

Tribunal that that Additional State Representative in his argument explained as to how the delay has occurred, where and how. The assessee filed a

counter, pointing out two judgments in support of the contention that the delay should not be condoned. According to the Tribunal the said two

decisions cited by the delay of 209 days in filing the enhancement petition was condoned. It is against that order, the present revision has been

preferred by the assessee.

The learned counsel appearing for the assessee submitted that the department has not explained or shown sufficient cause for condoning the

delay of 209 days in filing the enhancement petition. Merely stating that there was administrative delay would not go to slow that there was

sufficient cause for filing the enhancement petition beyond the period of limitation. It was also pointed out that the alleged affidavit said to have been

filed by the Additional State Representative is no in proper form and it was also not attested by any advocate. According to the learned counsel,

the affidavit was not even sworn by the deponent of the affidavit. Therefore, it was submitted that no sufficient cause was shown by the department

to condone the long delay of 209 days in filing the enhancement petition.

3.he learned Additional Government Pleader (Taxes), on the other hand submitted that due to the administrative difficulties the delay occurred and

after filing the necessary affidavit, the Additional State Representative explained to the Tribunal as to how and in what manner the delay occurred in

filing the enhancement petition. The learned Additional Government Pleader further submitted that in the matter of condoning the delay in filing the

enhancement petition, the court should adopt a lenient and liberal view. It was therefore pleaded that the order passed by the Tribunal in condoning

the delay of 209 days in filing the enhancement petition is in order and no interference is called for.

We have heard the rival submissions. Admittedly there was a delay of 209 days in filing the enhancement petition by the department. u/s 36(3-

A) and in accordance with the proviso thereunder, the Tribunal has got the power to condone the delay if the enhancement petition is filed beyond

60 days, it sufficient cause is shown by the department.

For condoning the delay, the Additional State Representative filed the following alleged affidavit :

AFFIDAVIT OF THE ADDITIONAL STATE REPRESENTATIVE

G. Rajamani, Additional State Representative, Madurai, do hereby solemnly and sincerely state as under :

I am the Additional State Representative, Madurai, and know the facts of the case. As against the Appellate of the Assistant Commissioner (C.T.)

in the above appeal, C from has been received in this office on December 16, 1991.

The delay is due to administrative reasons.

It is therefore prayed that the honourable Tribunal may be pleased to condone the delay of 209 days and admit the enhancement petition now filed.

Sd/- ...........

Additional State Representative (CT),

Madurai.

This affidavit would go to show that the affidavit was not sworn according to the relevant provisions of the code of Civil Procedure. This affidavit is

not attested be any advocate or any officer authorised on this behalf. There is no jurat portion in the affidavit is due to administrative reasons. This

is the reason shown by the department for condoning the delay of 209 days in filing the enhancement petition. Unless the department shows

sufficient cause for condoning the delay cannot be condoned. It is also well-known that each day''s must be explained.

A similar question of condonation of delay u/s 5 of the Limitation Act, 1963, came up for consideration before the Full Bench of the Gujarat High

Court in Municipal Corporation of Ahmedabad Vs. Voltas Limited and Others, . In the said judgment the majority view is as under.

The plea on the part on the applicants that the delay was caused by ''administrative delay/administrative reasons/administrative procedure'' (and

analogous expressions) is merely an averment in the nature of a plea which by itself and ipso facto does not establish sufficiency of the cause for

condition. Precise factual reasons for the delay within the general ambit of the said phrase must be established and that too the satisfaction of the

court. Hence, it cannot be held that, because the applicant is a Municipal Corporation or a statutory authority, delay should be condoned even if

no reason or cause for delay in filing appeal is mentioned in the application, mere mention of the phrase ""administrative delay."" In the application for

condonation of delay is not sufficient cause by any standard.

In the abovesaid decision while delivering the judgment, his Lordship Justice Y. B. Bhatt further held as under :

......... the cause referred to variously as ''administrative delay/administrative easons/administrative procedure'' cannot by itself be a sufficient cause,

irrespective of the facts of the case. ''Administrative delay/administrative reasons/administrative procedure is merely a reason set out for

condonation of delay. Setting out such a reason is merely in the nature of a plea or an averment, and this can only be made good by establishing the

same on the basis of this appropriate facts brought on record, which would assist the applicant in satisfying the court as regards sufficiency of the

cause. When an applicant sets out that the delay was on account of ''administrative reasons'', it is certainly a cause for the delay, i.e., it is the reason

behind the delay. This by itself does not necessarily make it ''sufficient cause'' within the meaning of the provision. What may be ''sufficient'' for

condoning the delay must necessarily be established from the facts, both averred and such facts would necessarily differ from case to case. Clearly

therefore, merely pleading or even asserting that the cause for delay was ''administrative delay reasons/administrative procedure'' would not

established the sufficiency of the cause.

In similar situation, the Supreme Court in the case of Ram Bhawan Singh and Others Vs. Jagdish and Others, held as under :

The first question we have to decide is that of limitation. The delay of 1198 days according to the appellants had occurred unwillingly and the

appellants had been prosecuting with due diligence the earlier proceedings before, the appellate and the revisional authorities and on the basis of

the advice given by their counsel. There is no proper affidavit of either appellants or the counsel in support of the application for condonation of

delay. There is also no other material to indicate that the appellants had exercised due diligence in working out their remedies and sought proper

advice in the matter. When the party had no right of appeal, the proceedings instituted before the High Court challenge the judgment in the writ

petition cannot be considered to be one in good faith. The subsequent proceeding are also not legal or valid. When the decision of the high court in

the writ petition was one proceed quashing the orders of the appellate and the revisional authorities, the party could not proceed on the basis that

matter was restored to the lower authorities for fresh decision. We are therefore not satisfied that is any merit in the ground urged by the appellants

for getting over the bar of limitation. The appeals are liable to be dismissed as time-barred.

A similar question came up for consideration before a Division Bench of this Court in United India Insurance Co. Ltd. v. Pravin Paul (1993) 1 LW

68 wherein the Division Bench held as under :

The averment that the administrative delay cannot be avoided in Government undertaking for more reason than one be accepted and that it is not

a valid reason to condone the delay. The petitioner has filed to come forward as to how the delay has occurred. He must give fuller details with

dates as to when the papers were sent to the Regional Office, when the managers concerned were deputed to attend policy matters of importance,

when they advised petitioner to fill appeal and why such delay has occurred. The affidavit is bereft of details. It well established that every day''s

has to be explained properly and there must be reasonable and acceptable explanation for the delay. In this case except the averment that the

administrative delay cannot be avoided, there is no acceptable reason for the delay with all particulars. We are not happy with the reasoning given

in para 5 of the affidavit wherein it is stated ''I most respectfully submit is a Government undertaking like the petitioner, administrative delay cannot

for the delay. The Government undertaking cannot be equated with the Government and they are expected to give details with regard to the delay.

We cannot condone the delay if it is simply stated, ''administrative delay''.

Therefore the considered view taken by the apex court and various High Courts is that a mere statement that the delay occurred due to

administrative reason alone would not constitute a sufficient cause for condoning the delay. In the present form. It was not attested by any officer

authorised in that behalf. There is no jurat portion in the affidavit. All these facts would go to show that the Government/department is not serious in

the matter of filing petition for condoning the delay in filing departmental appeals. When the department has not shown any sufficient cause, other

than administrative reasons, it is not for the Tribunal to say that the Additional State Representative explained adequately with regard to the cause

for the delay for the delay occurred. The sufficient cause must be shown by the party concerned and not by the deciding authority.

Our attention was drawn to a decision rendered by a Division Bench of this Court in D. C. M. Limited v. State of Tamil Nadu [1995] 96 STC

263 wherein this Court pointed out that it was not the function of the court to find the cause for the delay and it is for the party concerned to

explain it. The court had to merely examine whether sufficient cause for the delay had been shown. In this view of the matter, the respondent/State

was direct to file an additional affidavit before the Tribunal explaining the delay in filing the petition for enhancement, and on such filing, the Tribunal

was directed to dispose of the petition to condone the delay on merits, after giving opportunity of being heard, to both the parties concerned.

According to the facts arising in that case, the Tribunal has given its own reasons for condoning the delay in filing the petition. It is under such

circumstances the abovesaid order was passed by the Division Bench of this Court. Therefore, the above judgment would not render any

assistance to the respondent herein to contend that a fresh opportunity should be given to the department to file additional affidavit to explain the

sufficient cause for condoning in this case, because the department has a already given a reason for the condonation of delay which is not

acceptable per the earlier pronouncements of the Supreme Court and various High Courts including a Division Bench of this Court, on this aspect.

Accordingly, we consider that the Tribunal was not correct in condoning the delay of 209 days in filing the the enhancement petition by the

department. In that view of the matter, the order passed by the Tribunal stands set aside and this case (revision) stands allowed. No costs.

Petition allowed.