JUDGMENT
Choudhary, J.
1. The assessee in this case is a P.W.D. Contractor residing at Dinapore. The years of assessment are 1948-49, 1949-50 and 1950-51 and the period of assessment is from the 1st of April, 1948, to the 31st of March, 1951.
2. It appears that for the purpose of jurisdiction under the Bihar Sales Tax Act, Dinapore, was included in the year 1944 in the Patna Urban Circle and the assessee was registered as a dealer in that circle. In 1949, however, Dinapore was transferred to the Patna Rural Circle and the assessee obtained a fresh certificate of registration under that circle. The assessee was taxed in the Patna Rural Circle on the 10th of April, 1951, for the year 1948-49 on a taxable turnover of Rs. 1,15,326 and on the 29th of March, 1952, for the year 1949-50 on a taxable turnover of Rs. 38,370 and for the year 1950-51 on a taxable turnover of Rs. 1,40,786, the total taxable turnover being Rs. 2,94,482. It is said that the assessee paid the tax imposed on the above amount. The assessee was reported to have been carrying on business under the jurisdiction of the Patna Urban Circle also and a notice under Section 13(5) of the Bihar Sales Tax Act, 1947, was given to him to file returns and to produce his books of account. The assessee, however, did not submit his returns or produce his account books and, on the 30th of November, 1951, he was assessed by the Assistant Superintendent of Sales Tax by one order for the years 1948-49, 1949-50 and 1950-51, the taxable turnover being Rs. 1,03,214, Rs. 1,09,824 and Rs. 1,66,372, respectively, the total coming to Rs. 3,79,410. The total tax payable on the above amount was assessed at Rs. 11,599 and a total penalty of Rs. 11,401 was imposed for the period in question for the failure of the assessee to apply for registration of his business in the Patna Urban Circle and for his having deliberately failed to comply with the terms of the notice for filing of the returns and producing of the account books. A notice of demand was issued on the 15th of December, 1951 and it was received by the assessee on the 18th of December, 1951. He, thereafter, applied for a certified copy of the assessment order on the 29th of January, 1952 and the copy was delivered to him on the 1st of February, 1952. He preferred an appeal against the assessment order before the Deputy Commissioner of Sales Tax on the 13th of February, 1952, under Section 24(2) of the Bihar Sales Tax Act. As required by that section, the appeal should have been presented within 45 days of the receipt of the demand notice and, after deducting the time taken in obtaining the certified copy of the assessment order, the appeal should have been filed on the 5th of February, 1952. The appeal was obviously therefore filed beyond time and the explanation of the assessee was that he was ill from the 25th of January, 1952, to the nth of February, 1952 and was thus prevented from filing the appeal in time. In support of this contention, the assessee produced a medical certificate. The Assistant Commissioner of Sales Tax, who heard the appeal, held it to be time-barred as the appeal was filed in the Court of the Deputy Commissioner of Sales Tax, which was not the proper Court in which it should have been filed and it was actually received by the Court of the Assistant Commissioner of Sales Tax on the 24th of May, 1952. The Assistant Commissioner of Sales Tax, therefore, took the view that the appeal was filed in the proper Court after a lapse of 56 days from the date of the service of the demand notice. He also held that the filing of the appeal was not regular inasmuch as the 20 per cent. of the tax was not deposited until the 15th of June, 1953. He did not accept the explanation of the assessee for the delay in filing the appeal due to his illness and doubted the genuineness of the medical certificate produced by him, which appeared to him to have been freshly written. He, therefore, struck off the appeal as being time-barred. The assessee then moved the Deputy Commissioner of Sales Tax in revision, who agreed with the Assistant Commissioner of Sales Tax on the question of limitation and dismissed the application in revision without going into the merits of the assessment order. An application in revision was filed before the Board of Revenue which also, holding the appeal to be time-barred, rejected the revision application. The assessee then made an application before the Board of Revenue under Section 25 (1) of the Bihar Sales Tax Act for referring certain questions of law to this Court, but the same was summarily rejected. An application under Section 25(2)(b) of the Act was then made to this Court by the assessee with a prayer to require the Board of Revenue to refer certain questions of law to this Court for decision and, at the direction of this Court, the Board of Revenue has, under Section 25(3) of the Act, referred the following questions of law to this Court for its decision :-
(1) Whether in the facts and circumstances of the case the petitioner could be legally taxed under Section 13(5) of the Bihar Sales Tax Act for the period from the 1st of April, 1948, to the 31st of March, 1951, by the Sales Tax Officer, Patna Urban Circle.
(2) Whether in disposing of the revision application filed by the assessee the Board of Revenue should have gone into and decided the question of legality of the assessment of sales tax upon the assessee.
3. The contention put forward by the assessee on the merit of the case is that he has been assessed twice over for the same taxable turnover both in the Urban as well as in the Rural Circles and this contention is the subject-matter of the first question referred to this Court. But before that question could be gone into, it is necessary to deal with the second question, the decision of which depends upon the decision of the question of limitation in filing the appeal against the order of assessment made by the Assistant Superintendent of Taxes. As already observed, under Section 24(2) of the Sales Tax Act, an appeal has to be presented within 45 days of the receipt of the demand notice. In this case, admittedly, the demand notice was received on the 18th December, 1951. The last day of limitation for filing the appeal, therefore, was the 1st of February, 1952. The assessee, however, applied for a certified copy of the assessment order on the 29th of January, 1952 and the same was delivered to him on the 1st of February, 1952. He thus took four days to obtain the certified copy of the order; and even if that period is deducted in computing the period of limitation, the last day of limitation for filing the appeal would have been the 5th of February, 1952. It was, however, actually filed on the 13th of February, 1952, in the office of the Deputy Commissioner of Sales Tax. Assuming the presentation of this appeal in the office of the Deputy Commissioner to be a proper presentation, the appeal was obviously barred by time by eight days and, therefore, the Assistant Commissioner of Sales Tax was perfectly justified in holding the appeal to be time-barred. The question, however, is whether the delay in filing the appeal could be condoned in this case. Sub-section (2) of Section 24 of the Act empowers the authority before whom the appeal is filed to admit the appeal after the expiration of the period of 45 days if he is satisfied that the appellant had sufficient cause for not presenting the appeal within that period. The explanation of the assessee is that he fell ill on the 25th of January, 1952 and his illness continued up to the nth of February, 1952 and he was thus prevented from presenting the appeal within the prescribed period. In support of this contention, as already observed, the assessee produced a medical certificate. That certificate appears to have been granted on the 16th of February, 1952, by Dr. P.K. Sen Gupta, a registered medical practitioner, three days after the presentation of the appeal and that medical certificate was filed in Court, about one year and eight months after it purported to have been granted, on the 5th of October, 1953. The Assistant Commissioner of Sales Tax has observed in his judgment dated the 2nd of November, 1953, that that medical certificate appeared to him to have been freshly written. He also observed that the application for copy was made during the period the assessee alleged to have been ill. He, therefore, did not accept the explanation of the assessee for the delay in presenting the appeal and rejected the same as being time-barred. The Deputy Commissioner of Sales Tax further observed that the delay in filing of the appeal was not due to circumstances beyond the control of the assessee inasmuch as even the application for obtaining the certified copy of the assessment order was made only about three days before the last day for filing the appeal. In other words, he took the view that the assessee was not diligent in taking steps for prosecuting the appeal and, therefore, he could not be said to have been prevented by sufficient cause from filing the appeal within the prescribed period. The Board of Revenue also in its resolution on the revision application held that the plea of illness taken by the assessee before the appellate Court had no substance, Apart from the above ground, it also agreed with the appellate Court in respect of the unjustified delay in depositing 20% of the admitted tax.
4. So far as the question of condoning the delay is concerned, the assessee, in my opinion, has no case and the contention raised by counsel on his behalf in this regard must be rejected. The question whether the assessee was ill between the 25th of January and 14th of February, 1952, or not and whether he was prevented on account of that illness from presenting the appeal in time is a pure question of fact and the decisions of the tribunal on this question of fact are final and cannot be interfered with in a reference made to this Court under the provisions of Section 25 of the Act. The Courts of fact have come to a definite conclusion that the medical certificate is a bogus one and appeared to have been freshly written at the time when the same was filed about two years after the date of the illness. In the petition of appeal also there is no mention about this illness and, as observed by the Courts below, it appears to be only an afterthought and this story of illness was introduced only when the assessee was required to show cause for the late filing of the appeal. In that view of the matter, the Courts below were perfectly justified in not condoning the delay and holding the appeal to be time-barred.
5. Counsel for the assessee has, however, contended that the ground given by the appellate Court for doubting the genuineness of the medical certificate is not appropriate because it was not necessary for the assessee to have been present for applying for the certified copy or for taking delivery of the same and that any one on his behalf could have done so. I do not think there is any merit in this contention also and, as has been rightly pointed out by the Deputy Commissioner of Sales Tax, the person or persons who presented the application for a certified copy of the assessment order and took delivery of the copy had not been examined at any stage and, as a matter of fact, even their names had not been disclosed. Be that as it may, even in law the assessee is not entitled to have the delay condoned though he may have been actually ill during the period from the 25th of January, 1952, to the nth of February, 1952. In order that one can claim to get the delay condoned, he must show by his conduct that he was diligent all along in taking appropriate steps and the delay was caused notwithstanding his due diligence. If, however, it appears that an applicant is not diligent but is guilty of laches and negligence and does not take appropriate steps for pursuing his remedy till about the close of the period prescribed for an action to be taken, he cannot claim to have the delay condoned if per chance or by accident he happened to have exceeded the prescribed period in taking the proper steps. In such a case he must thank himself and must be prepared always to take the risk of having his remedy barred without expecting exercise of any discretion by a Court in his favour in condoning the delay. The view that I have taken gains support from a Bench decision of this Court in Jahar Mahal v. G.M. Pritchard A.I.R. 1919 Pat. 503. The following observation of Dawson Miller, C.J., who gave the leading judgment in that case, is very important in this connection :-
It is a matter which is continually being brought to the notice of the Courts in this country and that is this: It almost invariably happens that one party or the other intending to appeal or to take some other steps in the course of an action for which a time limit is prescribed by the rules, waits until the very last moment before taking that step. Sufficient time in all these cases is granted to the parties for doing whatever may be necessary for furthering their suit and if they choose to put off until the very last minute either the filing of the appeal or the taking of, any other steps which are a necessary part of the prosecution of their case they run a very great risk and it does not seem to me that it is sufficient for a party to come to Court and say that if everything had gone absolutely smoothly and if no unexpected accident had happened, he would have been in time in taking the steps required for his appeal. One is not entitled to put things off to the last moment and hope that nothing will occur which will prevent them from being in time. There is always the chapter of accidents to be considered and it seems to me that one ought to consider that some accident or other may happen which will delay them in carrying out that part of their duties for which the Court prescribed a time limit and if they choose to rely upon everything going absolutely smoothly and wait till the very last moment, I think they have only themselves to blame if they should find that something has happened which was unexpected but which ought to be reckoned with and are not entitled in such circumstances to the indulgence of the Court.
6. The same view was taken in Kedarnath v. Zumberla A.I.R. 1916 Nag. 39 in which it was held that an appellant, who wilfully leaves the preparation and presentation of his appeal to the last day of the period of limitation prescribed therefor, is guilty of negligence and is not entitled to an extension of time, if some unexpected or unforeseen contingency prevents him from filing the appeal within time. In that case what had happened was this. The decree appealed from was made on the 28th of March, 1916. An application for copies of the judgment and decree was made on the 2nd of May, 1916, which were delivered to the appellants on the 9th of June, 1916. The last day of the period prescribed for the appeal expired on the 26th of July, 1916, but the appeal was presented on the 27th of July, 1916. The Explanation for the delay was that owing to the river Purna being in flood the second appellant was delayed in his journey in coming to Court to file the appeal. Even accepting this explanation to be perfectly true, Stanyon, A.J.C., observed that, by itself, far from showing any sufficient cause for the failure to file the appeal within time, it exhibited nothing but negligence of a kind which the Courts ought not to condone and encourage. The principle of this case is fully applicable to the facts of the present case. The above view was re-affirmed by the Nagpur High Court in Hakimia v. J.C. Gammon A.I.R. 1930 Nag. 121. A Bench of the Nagpur High Court in Pandit Krishna Rao Dattatraya Phalke Trimbak A.I.R. 1938 Nag. 156 held the law on the subject to be as follows :-
The Court while exercising the discretion vested in it will necessarily look into the conduct of the appellant and will only exercise its discretion in favour of a person who is found to be diligent” and not in favour of one who is guilty of laches or negligence.
7. In Madan Gopal v. Malawa Ram A.I.R. 1923 Lah. 96 also it was held that a Court is not bound to show indulgence to a litigant who is not prompt in seeking his remedy. It is, therefore, manifest that, even if the explanation given by the assessee in this case about his illness be accepted, on the principles enunciated in the cases referred to above he is not entitled to be shown any indulgence as he has been guilty of wilful laches and negligence in taking steps for filing the appeal at a time when the period of limitation was going to expire.
8. For the reasons given above, the appeal was rightly held to have been time-barred and the explanation for condoning the delay also was rightly rejected. That being the position, it was not necessary for the Board of Revenue to have gone into and decided the question of legality of the assessment of sales tax upon the assessee while disposing of the revision application filed by him. Question No. 2, therefore, has to be answered in favour of the State of Bihar and against the assessee.
9. So far as the merit of the case is concerned, which is involved in Question No. 1, counsel for the assessee has contended that in this case the assessment has been made twice over for the same taxable turnover, first in the Rural Circle and then in the Urban Circle. Since, however, the second question has to be answered against the assessee, the decision of the first question becomes only academic and it is not therefore, necessary to answer that question. I, therefore, do not propose to answer the first question.
10. The result, therefore, is that the second question is answered in favour of the State of Bihar and against the assessee and I do not propose to answer the first question, as, in view of the answer of the second question, it becomes academic. In the circumstances of the case, there will be no order as to costs.
Ramaswami, C.J.
11. I agree.