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2009 DIGILAW 1051 (DEL)

PURE DRINKS (NEW DELHI) LTD. v. COMMISSIONER OF VALUE ADDED TAX, NEW DELHI

2009-09-25

A.K.SIKRI, VALMIKI J.MEHTA

body2009
JUDGMENT A.K. Sikri, J. The petitioner is in the business of manufacture and sale and purchase of aerated drinks with brand name "Campa". The petitioner is a registered dealer of ward 7 and is assessed to sales tax. At the relevant time the provisions of the Delhi Sales Tax Act, 1975 (hereinafter referred to as, "the local Act") as well as the Central Sales Tax Act, 1956 (hereinafter referred to as, "the Central Act") were applicable. Assessment of the year 1991-92 under the local Act as well as the Central Act was framed on March 29 and 31, 1995. Likewise, assessment for the year 1992-93 was framed on April 18, 1996. Rectification orders under section 48 of the local Act read with section 9 of the Central Act were passed on August 31, 1995 for the period 1991-92 thereby raising the demand under the local Act as well as the Central Act. Much later, the Commissioner, Sales Tax (respondent No. 1 herein) passed orders on February 21, 1997 under section 11 of the local Act directing the assessing authority to transfer the files of the petitioner to the Assistant Commissioner (Zone I) pertaining to the years 1979-80 to 1992-93 for causing of reassessment under section 24 and also for taking up penalty proceedings under section 56 of the local Act. The Assistant Commissioner (Zone I) was asked to dispose of these cases of reassessment expeditiously after following due process of law. On this direction the Assistant Commissioner issued notices dated July 1, 1997 for reassessment under section 24 for the years 1991-92 and 1992-93. The petitioner appeared in response to the reassessment notice. According to the petitioner, at that time it was not aware that the Commissioner had issued any orders under section 11 of the local Act on February 21, 1997. However, without completing the proceedings pursuant to the aforesaid notices dated July 1, 1997, fresh show-cause notices dated July 1, 1997 were issued proposing to suo motu revise the original assessment orders dated March 31, 1995 (in respect of the year 1991-92) and April 18, 1996 (in respect of the year 1992-93) under the provisions of section 46 of the local Act. In pursuance to the said show-cause notices, suo motu revision orders for the year 1991-92 were passed on July 11, 2000 thereby creating a demand of Rs. 3,19,40,113. In pursuance to the said show-cause notices, suo motu revision orders for the year 1991-92 were passed on July 11, 2000 thereby creating a demand of Rs. 3,19,40,113. Likewise, revision orders dated March 26, 2001 were passed for the year 1992-93 raising a demand of Rs. 2,38,60,355. According to the petitioner, it did not receive copies of those orders for certain years. Thus, vide letter dated September 26, 2002 request was made to the Department to furnish certified copies of the orders, which was followed by numerous personal visits, still when the certified copies of these orders were not received, on December 1, 2005 the petitioner made another application asking the Department to furnish certified copies of the assessment orders. Certified copies were made available to the petitioner on December 28, 2005 and thereafter the petitioner challenged these orders by filing appeal before the Tribunal. Since the appeals were time-barred as the dates of revisional orders passed were July 11, 2000 and March 26, 2001, respectively, the petitioner also filed applications for condonation of delay in respect of these for both the years. The Tribunal has, however, refused to condone the delay as, according to the Tribunal, no sufficient cause is shown by the petitioner. Therefore, these applications are dismissed vide impugned orders dated October 31, 2007 and as a consequence, the two appeals have also been dismissed as time-barred. It is the said common order dated October 31, 2007 which is the subject-matter of challenge in this writ petition. According to the petitioner, when the aforesaid suo motu revision petitions were pending after issuance of show-cause notices dated July 1, 1998, the petitioner had suffered a serious setback when the MNCs like pepsi and coca cola established their footholds in the consumer products. Because of their aggressive marketing and huge financial resources, attractive offers were put by these companies. The petitioner could not compete with them and consequently, difficulties were faced in marketing the products. The general unrest among the employees was caused and because of paucity of funds, the rift between the management and the employees became wider. One plant of the company closed down in 1999 and second was also shut down in 2000. Workmen forcefully took over the office and factory premises and did not allow the management to have access to the building. One plant of the company closed down in 1999 and second was also shut down in 2000. Workmen forcefully took over the office and factory premises and did not allow the management to have access to the building. When the liquidity of the petitioner deteriorated due to non-marketability of the products and general unrest in the employees, the creditors asked for their money and ultimately resorted to filing of winding up petition of the company. The winding up proceedings in C.P. 16/2007 titled DCM Financial Services Pvt. Ltd. v. Pure Drinks (New Delhi) Ltd., are underway before the Punjab and Haryana High Court. Workers who had taken over the possession of the office did not allow the management to take away the records from the office. It was in the presence of Mr. Justice P. K. Jain that some records were retrieved from the premises which was prior to the suo motu revision order passed by the Assistant Commissioner. Report of Mr. Justice P. K. Jain is filed along with the petition in respect of this plea. It is further stated that while the aforesaid orders were passed by the Department, serious disputes were pending between the management of the petitioner and its employees which has not been disputed by the Department. It is also not disputed that on July 11, 2000 and March 26, 2001 when these orders were passed, the premises of the petitioner were under the siege of the labour. While making specific arrangement for the settlement of the dues of workmen of unit No. 1 of the petitioner and their Central Office, an order came to be passed by the Supreme Court in SLP No. 8427/2000 in the case of DCM Financial Services Ltd. v. Neel Kamal Plastics Ltd., with S.L.P. No. 9003-04/2000, SLP (C) No. --/2000 (CC), 5960-5961 and TP (C) No. 38-41/2001, with a direction to the labour to vacate the premises, namely, Mohan Singh Building, Connaught Lane, New Delhi and file an undertaking not to cause any hindrance or obstructions either by themselves or through their agents or supporters in regard to the use and enjoyment of the said property by the Pure Drinks (New Delhi) Ltd. Sh. D. S. Narula, the petitioner's counsel, who was representing them in the winding up proceedings before the Punjab and Haryana High Court, forwarded a copy of the list of recoveries/demand against sales tax which was given to him by the Department in the winding up proceedings asking the petitioner about the status of those demands. It is at this stage that the petitioner moved an application dated September 26, 2002 for supply of certified copies of the orders. In the meantime, on October 29, 2003 when the workmen and employees of the petitioner did not vacate the premises as per the orders of the Supreme Court passed on May 4, 2001 an IA in TP (C) No. 38-41/2001 in the case of Pure Drinks v. DCM Financial Services Ltd., was filed before the Supreme Court with a prayer to direct the workmen and employees of the petitioner at plant No. 1 as well as 2 and the Central Office to vacate the petitioner's premises and hand over vacant and peaceful possession of the same. Thus, the main reason given by the petitioner in the applications for condonation of delay was that the petitioner was embroiled in the aforesaid litigation which even denied the access to the premises by the workmen because of which it could not come to know of the outcome of the suo motu revision proceedings and when the petitioner was supplied the certified copies after persisted demands on December 28, 2005, the petitioner filed appeals immediately thereafter on January 5, 2006. We may mention at this stage that before the Tribunal it was revealed by the Department that certified copies of the revision orders were collected by Sh. S. K. Goel, the Junior Accounts Executive of the petitioner on July 31, 2000. On this basis the Tribunal opined that when the copies were collected by the authorized representative of the petitioner way back on July 31, 2000, the plea that it did not receive certified copies was incorrect. According to the petitioner, however, the petitioner came to know about the aforesaid fact of receipt of copies by Sh. S. K. Goel only during the course of hearing when the Department placed on record the acknowledgment of Sh. Goel having received those copies. It was also the plea of the petitioner that Sh. According to the petitioner, however, the petitioner came to know about the aforesaid fact of receipt of copies by Sh. S. K. Goel only during the course of hearing when the Department placed on record the acknowledgment of Sh. Goel having received those copies. It was also the plea of the petitioner that Sh. Goel had neither given the copies to the petitioner nor brought the said fact to the knowledge of the petitioner. It was also pleaded that even when the request for certified copies of the orders was made on September 26, 2002, the Department never reverted back saying that the copies of these orders had been obtained/collected by Sh. S. K. Goel. Even on December 28, 2005, when the certified true copies of these orders were given by the Department the originals of which were placed in the record of the Tribunal they did not bear the signatures of Sh. S. K. Goel and thus it was not in the knowledge of the petitioner even at that time that copies of the said orders have already been collected by him. When the petitioner came to know of this fact for the first time on December 5, 2006, they confronted this fact to Sh. S. K. Goel, who was working with the petitioner earlier. He confirmed of having received the copies of the orders for the aforesaid two years on the said dates, but had not handed over the same to the management. When asked to explain the reasons for retaining the orders with himself, Sh. Goel stated that since his salaries had not been paid by the petitioner - company, therefore, he did not hand over the copies of the orders. He also swore an affidavit to that effect which was placed before the Tribunal. The petitioner has also placed on record memorandum of settlement dated April 15, 2007 filed before Mr. Justice A. B. Saharya (Retd.), court nominee for settlement, which memorandum of settlement shows that a sum of Rs. 2,42,667 was paid to Sh. Goel representing salary dues for the period between November 1999 and May 2001. On this basis plea of the petitioner is that the reason because of which Sh. Goel did not hand over the certified copies, namely, non-receipt of dues by him was valid. The Tribunal, however, did not accept the aforesaid plea of the petitioner. Goel representing salary dues for the period between November 1999 and May 2001. On this basis plea of the petitioner is that the reason because of which Sh. Goel did not hand over the certified copies, namely, non-receipt of dues by him was valid. The Tribunal, however, did not accept the aforesaid plea of the petitioner. Perusal of the impugned order would reveal that the Tribunal has been led by the following circumstances to adopt the aforesaid course of action : (a) Sh. S. K. Goel, Accounts Executive of the petitioner, had received certified copies of the orders. This amounted to valid service in accordance with the provisions of rule 46 of the Delhi Sales Tax Rules. (b) He was not a novice or ordinary employee of the company but had been representing the petitioner for last several years in a most responsible manner before the sales tax authorities and had also been regularly participating in the proceedings in the previous assessment order as also the assessment year in question. He was a person who was regularly employed by the petitioner in connection with the business. (c) The impugned orders passed were, thus, within the knowledge of the petitioner's representative and inaction, if any, on his part would not come to the rescue of the petitioner. It is more so when the petitioner did not take any action against Sh. Goel for his purportedly not handing over the relevant papers to the petitioner. (d) The petitioner had been shifting its stand time and again with regard to the condonation of delay which had to be viewed adversely. In the initial application dated January 5, 2006 condonation of delay was sought on account of the fact that there was unrest and strike in the factory as a result whereof there was no access either for the managerial staff or to the workers into the factory and therefore, the petitioner was not in a position to know that any adverse order had been passed against them which could necessitate the appeals. However, in subsequent application dated January 25, 2007 supplementing the earlier application, altogether new ground was taken, namely, Sh. S. K. Goel, who had received the copies, kept the petitioner in dark. Yet again, another inconsistent stand was taken by the petitioner regarding supply of certified copy on December 28, 2005. However, in subsequent application dated January 25, 2007 supplementing the earlier application, altogether new ground was taken, namely, Sh. S. K. Goel, who had received the copies, kept the petitioner in dark. Yet again, another inconsistent stand was taken by the petitioner regarding supply of certified copy on December 28, 2005. We may state at the outset that no doubt, there was substantial delay in filing the appeals. The revisional orders passed in respect of the two assessment orders are dated July 11, 2000 and March 26, 2001 but the appeals were filed only on December 5, 2006. In first blush even the observation of the Tribunal that the petitioner had taken contrary stand appears to be correct. However, a little deeper and proper scrutiny of the matter would reveal that it is not so and further that the petitioner cannot be decried as grossly negligent to deny it the right to get the appeal decided on merits. We may first deal with the observations of the Tribunal about the purported contrary stand taken by the petitioner. When the petitioner filed the appeals on January 5, 2006, as per the petitioner, the appeals were filed after the certified copies were obtained on December 28, 2005. Reasons because of which the petitioner could not come to know of the passing of the said orders were stated in the application for condonation of delay. At that time the petitioner did not know that certified copies of the orders were received by Sh. Goel. Had it been in the knowledge of the petitioner, the petitioner would have dealt with the same at the threshold itself in the application for condonation of delay. The petitioner came to know of this fact only during the proceedings and that necessitated filing of the application dated January 25, 2007 supplementing earlier application. Once the petitioner was confronted with the fact that certified copies of the impugned revisional orders were supplied to Sh. Goel, it enquired into the matter and as to whether Sh. Goel had received those copies and if so, why those copies were not supplied to him and on that basis this aspect was dealt with in the application dated January 25, 2007. That would not mean that the petitioner changed or shifted its stand. On the contrary, this would show that the petitioner was unaware of the receipt of certified copies by Sh. That would not mean that the petitioner changed or shifted its stand. On the contrary, this would show that the petitioner was unaware of the receipt of certified copies by Sh. Goel and would strengthen its plea that Sh. Goel had not handed over the copies to the petitioner and did not make the petitioner aware of the receipt of the said copies. Likewise, ground taken in the application about receipt of certified copy on December 28, 2005 cannot be treated as another ground which is contrary to the main plea, namely, dispute between the management and the employees because of labour unrest. What, in fact, is stated is that because of the aforesaid disputes the petitioner was unaware of the outcome of the proceedings. When it came to know about the same in the company petition, which was pending in the Punjab and Haryana High Court, the petitioner took steps and applied for the certified copies. When we view the development in the aforesaid perspective, we find that though there may be some negligence on the part of the petitioner, it was not so culpable or serious warranting dismissal of applications for condonation of delay as the circumstances explained would furnish some justification for not approaching the Tribunal earlier. It would be of interest to note that proceedings in respect of assessment orders passed for various years had been reopened/revised and the petitioner had been pursuing the proceedings in respect of other assessment years. In fact, in respect of immediate previous assessment year, i.e., 1990-91 also, revision order was passed against which the petitioner had preferred appeal before the Tribunal in the year 2002-03. Said appeal was even allowed by the Tribunal vide orders dated December 8, 2005. When the petitioner could be vigilant in respect of that assessment year which was not only filed in time but successfully perused, there is no reason that the petitioner would not have filed the appeals in respect of years in question had it got the knowledge about the passing of the orders in respect of the years in question. This only shows that the petitioner was otherwise vigilant about its rights and remedies. It is also to be borne in mind that in respect of assessment year 1991-92 the demand of Rs. 1,74,865 was created under the local Act which is enhanced to Rs. This only shows that the petitioner was otherwise vigilant about its rights and remedies. It is also to be borne in mind that in respect of assessment year 1991-92 the demand of Rs. 1,74,865 was created under the local Act which is enhanced to Rs. 3,19,40,113 as per the suo motu revision order. Likewise, for the assessment year 1992-93 as per the original order framed demand of Rs. 10,38,267 was created under the local Act, which has been enhanced to Rs. 2,38,60,355 under the local Act by the orders passed in revision. Thus, the adverse effect of the two orders on the petitioner is tremendous and the petitioner, who had been contesting other proceedings, could not have kept quite. From the various documents filed by the petitioner it becomes apparent that there were, in fact, disputes between the management and the workmen. It has also come on record that the workmen have forcefully taken over office and factory premises of the petitioner and had not allowed the management to have access to the building. These disputes led to various legal proceedings which included even winding up petition filed against the petitioner in the Punjab and Haryana High Court. Matters even went up to the Supreme Court. No doubt the petitioner should have been more vigilant. However, when we take into consideration all the aforesaid circumstances, we are of the view that the petitioner is entitled to contest the orders passed in revision on the merits by penalizing the petitioner with cost for its conduct bordering on the negligent. In adopting this course of action we have to keep in mind the dicta laid down by the Supreme Court in the following judgments : In the case of Collector, Land Acquisition, Anantnag v. Mst. Katiji [1987] 66 STC 228 (SC); AIR 1987 SC 1353 , the Supreme Court made the following pertinent observations : "5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so." Similar approach was adopted by the Supreme Court in Sita Ram Singh v. Ram Kishori Devi [1999] 9 SCC 112. Again, in N. Balakrishnan v. M. Krishnamurthy [2008] 228 ELT 162 (SC) delay of 883 days in filing the appeal to set aside decree was condoned by the Supreme Court accepting the plea that information was not provided by the advocate on passing of ex parte decree. While doing so, the court observed : "8. The appellant's conduct does not on the whole warrant to castigate him as an irresponsible litigant. What he did in defending the suit was not very much far from what a litigant would broadly do. Of course, it may be said that he should have been more vigilant by visiting his advocate at short intervals to check up the progress of the litigation. But during these days when everybody is fully occupied with his own avocation of life an omission to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his responsibilities, and to visit him with drastic consequences. 9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on whole untenable grounds or arbitrary or perverse. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on whole untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court. 10. The reason for such a different stance is thus : The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. Time-limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. 11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicue un sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. 12. A court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. 12. A court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This court has held that the words 'sufficient cause' under section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari AIR 1969 SC 575 and State of West Bengal v. Administrator, Howrah Municipality AIR 1972 SC 749 . 13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant, the court shall compensate the opposite party for his loss." At the same time, in order to balance the equities, we feel that delay should be condoned only with exemplary cost. In the facts of this case we are of the opinion that cost of Rs. 1 lakh (Rs. 50,000 for each application) be imposed. In these circumstances, the writ petition is allowed. Rule is made absolute. Orders dated December 8, 2005 passed by the Tribunal are set aside. Delay in filing the appeals is condoned subject to payment of Rs. 1 lakh as costs to the respondent which shall be paid within four weeks. The Tribunal shall hear and decide the appeals on the merits expeditiously. R.P. No. 427 of 2009 in W.P. (C) No. 199 of 2008, dated October 30, 2009. Delay in filing the appeals is condoned subject to payment of Rs. 1 lakh as costs to the respondent which shall be paid within four weeks. The Tribunal shall hear and decide the appeals on the merits expeditiously. R.P. No. 427 of 2009 in W.P. (C) No. 199 of 2008, dated October 30, 2009. Although this petition is termed as review petition, in fact, it is pointed out that in the judgment dated September 25, 2009 passed by this court, it is wrongly mentioned that order dated December 8, 2005 is quashed. Order in question is dated October 31, 2007. We, accordingly, make it clear that order dated October 31, 2007 passed by the Tribunal is set aside by our judgment dated September 25, 2009. Review petition is disposed of.