By TIOL News Service

MUMBAI, JULY 22, 2015: THE issue before the Bench is - Whether in the absence of plausible and acceptable explanation, the delay can be condoned mechanically merely because the Government or a wing of the Government is a party before the Court. NO is the answer.

Facts of the case

The notice of Motion was taken out by the Revenue seeking condonation of delay of 712 days in filing an appeal u/s 260A from the order dated 11 September 2006 of the Tribunal. The Appeal relates to the AY 1978-1979. The Affidavit insupport of the Notice of Motion seeking condonation of delay sets out the various reasons for the delay. From the list of events as set out, it was clear that except listing out the dates indicating the manner in which the file pertaining to filing of the appeal moved from one desk to another, there was no explanation for the delay. In fact, as set out above the impugned order 11 September 2006 was received by the department on 21 September 2006 and it was only on 10 January 2007 that the AO forwarded his comments to the office of CIT seeking approval for filing appeal. Similarly, there was no explanation provided in the affidavit of what happened between the date 16 January 2007 to 5 August 2008.

Held that,

++ the SC in the case of Post Master General and others Vs Living Media India Limited and another 2012-TIOL-123-SC-LMT has observed that it is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with Court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafides, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody, including the government. It is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red tape in the process. The Government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. The observations of the Apex Court do apply on all fours to the present application for condonation of delay filed by the Revenue. In the above circumstances, we see no reason to condone the delay. Accordingly, Notice of Motion is dismissed.

(See 2015-TIOL-1644-HC-MUM-IT)