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March 29, 2023

A 2659-day delay is unacceptable given the death of the attorney

A 2659-day delay is unacceptable given the death of the attorney

Fact and issue of the case

For the reasons stated therein, the delay in filing the present petition is hereby condoned.

The application for condonation of delay is allowed.

STREV No.56 of 2016

The present revision petition is directed against an order dated 7th May, 2016 passed by the Orissa Sales Tax Tribunal (OSTT), Cuttack (Tribunal) dismissing the Dealer/Assessee’s S.A. 48/2015-16 on the ground of delay.

A perusal of the impugned order, it reveals that there was a delay of 2569 days in the Assessee filing the said appeal against an order dated 28th April, 2008 passed by the Assistant Commissioner of Sales Tax (ACST), Cuttack-1 Range, Cuttack partly allowing the appeal by the Petitioner/Assessee against the assessment order of the Sales Tax Officer (STO), Cuttack-1 under Section 12(8) of the Orissa Sales Tax Act for the year 2003-04. In partly allowing such appeal, the ACST had reduced the demand of Rs.9,84,476/- to Rs.3,89,130/-. Aggrieved by to the extent that the appeal was not entirely allowed, the aforementioned Second Appeal was filed before the Tribunal, but with the delay of 2569 days.

The reasons put forth in the application for condonation of delay before the Tribunal was that the Lawyer handling the case had suffered from serious illness and ultimately died on 6th August, 2012. Papers had been entrusted to such Advocate to file the appeal but, the Assessee had not bothered to follow up with the Advocate to ascertain whether in fact the appeal had been filed or not. The Tribunal was not convinced with the reasons adduced and, therefore, declined to condone the delay.

Mr. Saswat Kumar Acharya, learned counsel appearing for the Petitioner placed reliance on a judgment of the Supreme Court of India in Collector, Land Acquisition v. MST Katiji (1987) 2 SCC 107, where observations have been made that there must be a justice oriented approach in examining if there was sufficient cause for condoning the delay.

Observation of the court

The above decision arose in the context of the Land Acquisition Act. It acknowledged that persons before the Courts in such cases may not be the persons who may be aware of the complexities of the legal procedure.

The Court is of the view that what was expressed in the context of the Land Acquisition proceedings cannot ipso facto be extrapolated to proceedings like the present one which arise under the Sales Tax legislation. Here, the Assessee is fully aware of the requirement of having to file returns and proceedings within time. After all, the Petitioner is a dealer registered under the Orissa Sales Tax Act and is aware of the necessity for filing returns, for challenging demands before an Appellate Authority and of the fact of the further appeal before a Second Appellate Authority like the Tribunal.

The long and short of the above narration is that as far as the Petitioner/Assessee is concerned, the explanation offered for an extraordinary delay of 2569 days was not convincing at all.

Mr. Acharya, then sought to place the merits of the matter to urge that there was an egregious error committed by the ACST in only partly allowing the appeal and reducing the demand. Since the essential question as far as the present revision petition is concerned, is only about the justification for the Tribunal not condoning the delay of 2569 days, the Court would not like to delve into the merits of the matter.

Since no substantial question arises from the impugned order of the Tribunal, the present revision petition is dismissed.


In the result, appeal of the assessee is allowed and ruled in favour of the assessee

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