WPMS/444/2011 of M/S JYOTHY LABORATORIES LIMITED Vs STATE OF UTTARAKHAND THROUGH PRINCIPAL SECRETARY, FINANCE, GOVT. OF UTTARAKHAND, DEHRADUN

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition (M/S) No.444 of 2011

M/s Jyothy Laboratories Limited, KIE Industrial Estate, Village Mundiyaki, Rookee, District Haridwar through its Factory Manager, Sri Sajeevan S/o Sri Balan

..................Petitioner

-versus-

1.State of Uttarakhand through Principal Secretary

Finance, Govt. of Uttarakhand, Dehradun.

2.Joint Commissioner (Administration)

Commercial Tax, Dehradun

.............Respondents

Advocates appeared in the case:-

For Appellant learned counsel for the petitioner.

: Mr. Yogendra Aldrak and Mr. Tarun Pande,

For Respondents for the State.

: Mr. Tarun Lakhera, learned Brief Holder

Date of hearing and Judgement : 01.12.2021

Sri S.K.Mishra, J.

1.Heard Mr. Yogendra Aldrak and Mr. Tarun Pande, learned counsel for the petitioner and Mr. Tarun Lakhera, learned Brief Holder the State. learned counsel for the petitioner and Mr. Tarun Lakhera, learned Brief Holder the State.

2.In this writ application, the petitioner being an assessee under the Uttarakhand Value Added Tax Act, 2005 (hereinafter referred to as ‘the UKVAT Act’ for brevity), has assailed the order passed by assessee under the Uttarakhand Value Added Tax Act, 2005 (hereinafter referred to as ‘the UKVAT Act’ for brevity), has assailed the order passed by

the Commercial Tax Tribunal on 03.12.2010, (Annexure-6), annexed to the writ application condoning the delay of 333 days in preferring the Appeal filed under Section 53 of the U.K.VAT Act, 2005, assailing the order passed by the Commissioner under Section 57 of the said Act.

Learned counsel appearing for the petitioner would rely upon the judgments of the Hon’ble Supreme Court in the cases of National Textile Corporation Ltd. V. Naresh Kumar Badrikumar Jagad & others, (2011) 12 SCC 695; Secretary to the Govt & another v. M. Senthil Kumar, (2005) 3 SCC 451; and V.K. Majotra v. Union of India & others (2003) 8 SCC 40, and contended that the decision of courts and tribunals cannot be based out the of the pleadings of the parties. Elaborating his arguments, learned counsel for the petitioner would submit that the department preferred an appeal to the Tribunal averring certain contentions but while condoning the delay, the Tribunal took into consideration certain facts, which were not pleaded by the Department and condoned the delay, as result of which, the petitioner has been prejudiced. He would also rely upon several judgements of the Hon’ble Supreme Court viz. Commissioner v. Sikkim Manipal University, (2021) 7 TMI 474 SC; Office of the Chief Post Master General vs. Liming Media India Ltd., 2012 (4) TMI 341 (SC); Commissioner of Wealth vs. Amateur Riders Club, (1993) (12) TMI 214, wherein the Hon’ble Supreme Court either has not condoned the delay or has refused to interfere in

the mater where the delay condonation petition has been rejected by the different authorities or by the High Courts.

Learned counsel for the State Mr. Tarun Lakhera, on the other hand would submit that the petitioner did not approach the Commissioner by filing an application under Section 57 of the aforesaid Act for an advance ruling with clean hands. In fact, it is apparent from the order passed by the Commissioner that before filing of the application for advanced rulings, the petitioner was served with notice by the Assessing Officer as to show cause why the Tax at the rate of 12.5% should not be imposed upon his products instead of 4% as was being paid by the assessee petitioner.

While dealing with question of limitation, the Hon’ble Supreme Court in the case of Collector Land Acquisition, Annantnag and another vs. Mst. Kantiji and others, AIR 1987 Supreme Court 1353, has come to the conclusion that it is Common knowledge that the Hon’ble Supreme Court has been justifiably taken liberal approach in the matter instituted before it, but the massage does not appear to have percolated down to all other Courts in the hierarchy. Such liberal approach is adopted on the principle as it is realised by the Hon’ble Supreme Court and the reasons were stated as hereunder:

1.Ordinarily litigant does not stand to benefit by lodging an appeal late. lodging an appeal late.

2.Refusing to condone delay can result in meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is con- doned the highest that can happen is that cause would be decided on merits after hearing the parties. meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is con- doned the highest that can happen is that cause would be decided on merits after hearing the parties.

3."Every day's delay must be explained" does not mean that pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in rational common sense pragmatic manner. mean that pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in rational common sense pragmatic manner.

4.When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of non-deliberate delay. considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of non-deliberate delay.

5.There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. litigant does not stand to benefit by resorting to delay. In fact he runs serious risk. deliberately, or on account of culpable negligence, or on account of mala fides. litigant does not stand to benefit by resorting to delay. In fact he runs 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. account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

Thus, it is apparent from the record that the learned Tribunal took into consideration the fact that is generally available in such cases. It is true that the exact contention raised in the petition for condonation of delay has not been discussed in its final analysis while allowing the application for condonation of delay but nonetheless he has very faithfully and meticulously reflected the grounds learned Tribunal took into consideration the fact that is generally available in such cases. It is true that the exact contention raised in the petition for condonation of delay has not been discussed in its final analysis while allowing the application for condonation of delay but nonetheless he has very faithfully and meticulously reflected the grounds

taken by the petitioner in his order which is impugned before us. On that count itself the order should not be set aside. Moreover, it is seen that the petitioner is not playing the game by the Rules and he has shown machination in not bringing it to the notice of the learned Commissioner in his application for advance rules under Section 57 of the Act, that he has been issued with notice of show-cause on this same issue. So, person who does not play the game by the Rule should not expect fair treatment from the authorities as well.

7.Moreover, another aspect has to be examined by this Court. In the case of Surya Deo Rai vs. Ram this Court. In the case of Surya Deo Rai vs. Ram

Chander Rai and others, (2003) 6 Supreme Court Cases 675, while deciding whether writ application under Article 226 of the Constitution of India is maintainable against an order passed by Civil Court in civil proceeding or civil suit, the Hon’ble Supreme Court took into consideration several judgements pronounced by the Supreme Court as well as different High Courts and has also discussed the scope of writ of certiorari and supervisory jurisdiction under Articles 226 and 227 of the Constitution of India. The Hon’ble Supreme Court, in this case (a Judgment authored by Justice R. C. Lahoti, as His Lordship was then) brought out the distinction between writ of certiorari and supervisory jurisdiction. The Ho’ble Supreme Court took also into consideration that the limits of both supervisory as well as certiorari jurisdiction. In

the case of Suryadev Rai (supra) the Hon’ble Supreme Court held that writ application is maintainable against an order passed by the Civil Court in civil proceeding. Later on, the mater was referred to larger Bench in Radhey Shyam vs. Chhabi Nath, (2015) 5 Supreme Court Cases 420, wherein the larger Bench came to the conclusion that writ application under Article 226 of the Constitution of India is not maintainable against an order passed in Civil Proceedings. However, the Hon’ble Supreme Court in the case of Radhe Shyam vs. Chhabi Nath has not overruled the observations (supra) regarding the nature and scope of certiorari and supervisor jurisdiction. The observations made in an earlier judgment of Surya Dev Rai vs. Ramji Rai regarding the limits of jurisdiction of the High Court in exercise of jurisdiction of Writ of Certiorari or supervisory jurisdiction remains valid as yet. As it is based on sound principle enunciated by different judgments of the Hon’ble Supreme Court at earlier points of time.Be that as it may, this Court is of the opinion that Writ of Certiorari under Article 226 of the Constitution is issued for correcting gross errors jurisdiction i.e. when subordinate court is found to have acted: Writ of Certiorari under Article 226 of the Constitution is issued for correcting gross errors jurisdiction i.e. when subordinate court is found to have acted:

(i)without jurisdiction- by assuming jurisdiction where there exists none, or, where there exists none, or,

(ii)in excess of its jurisdiction – by overstepping or crossing the limits of jurisdiction, or; crossing the limits of jurisdiction, or;

(iii)acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure prescribed and, thereby occasioning failure of justice. of procedure or acting in violation of principles of natural justice where there is no procedure prescribed and, thereby occasioning failure of justice.

Be it writ of certiorari jurisdiction or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied:

(i)The error is manifest and apparent on the proceedings such as when it is based on clear ignorance or utter disregard of provisions of law, and; proceedings such as when it is based on clear ignorance or utter disregard of provisions of law, and;

(ii)A grave injustice or gross failure of justice has occasioned thereby. occasioned thereby.

The power to issue writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the court dictates it to act lest gross failure of justice or grave injustice should occasion.

Care, caution and circumspection need to be excursed, when any of the above said two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of proceedings in an appeal or revision preferred there against and entertaining petition invoking certiorari or supervisory jurisdiction of

the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings.

The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into court of appeal and indulge in re-appreciation and evaluation of evidence or correct errors in drawing inferences or correct errors mere formal and technical character.

Keeping in view the settled principle of law, regarding the limitation of writ of certiorari jurisdiction or supervisory jurisdiction, this Court is of the opinion that the learned counsel for the petitioner has failed to establish that there was any error on the part of the learned Tribunal in condoning the delay by assuming jurisdiction or exceeding its jurisdiction or acting in flagrant disregard of the jurisdiction with regard to the rules and procedure etc., in violation of principle of natural justice etc. It is also not established by the learned counsel for the petitioner that by allowing the application for condonation of delay and by condoning the delay of 333 days, the learned Tribunal has passed such an order that has occasioned failure of justice. In the ultimate analysis, this Court is of the opinion that even in the worst case, the matter challenged by the State of Uttarakhand before the Tribunal will be decided on merit and it will be decided whether the petitioner is assessable to 4% or 12.5% of Value Added Tax, 2005 as per the Act aforesaid. So, this Court is of the opinion that:

(i)There is no jurisdictional error on the part of the Tribunal requiring interference of this Court. Tribunal requiring interference of this Court.

(ii)There is no failure of justice in this case or there is no gross error of jurisdiction or gross error manifest and apparent on the face of the proceedings, which is in clear ignorance and utter disregard of the provisions of law and this Court should not convert itself to court of appeal and indulge in re-appreciation or evaluation of evidence afresh to come to the conclusion. is no gross error of jurisdiction or gross error manifest and apparent on the face of the proceedings, which is in clear ignorance and utter disregard of the provisions of law and this Court should not convert itself to court of appeal and indulge in re-appreciation or evaluation of evidence afresh to come to the conclusion.

10.This court is constrained to observe that the filing of the application under Section 57 of the Act by the petitioner suppressing the fact that show cause notice has been issued by the Assessing Authority/Officer to him indicates that the petitioner has not come to the Court with clean hands and, therefore, that is an additional ground, for which, he should not be given any discretional relief by the High Court under Article 226 or 227 of the Constitution of India. of the application under Section 57 of the Act by the petitioner suppressing the fact that show cause notice has been issued by the Assessing Authority/Officer to him indicates that the petitioner has not come to the Court with clean hands and, therefore, that is an additional ground, for which, he should not be given any discretional relief by the High Court under Article 226 or 227 of the Constitution of India.

11.Such being the conclusion of this Court, this Court refuses to interfere in the order passed by the Tribunal condoning the delay. The writ petition is dismissed being devoid of any merit. Court refuses to interfere in the order passed by the Tribunal condoning the delay. The writ petition is dismissed being devoid of any merit.

12.There shall be no order as to costs.

(S.K.Mishra)

Judge

KKS