CWP Nos.10837 and 10881 of 2009 #1#
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
CWP Nos.10837 and 10881 of 2009
Date of Order: 27.7.2009
M/s Om Steel Traders, Novelty Road Karnal, Vinod Garg, Proprietor
...Petitioner
Versus
State of Haryana and others
....Respondent
CORAM: HON’BLE MR. JUSTICE M.M. KUMAR
HON’BLE MR. JUSTICE JASWANT SINGH
Present: Mr. Avneesh Jhingan, Advocate for the petitioner(s).
Ms. Ritu Bahri, DAG, Haryana for the respondents.
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
M.M. KUMAR,J
This petition is directed against order dated 24.12.2008 passed
by Haryana Tax Tribunal in STA Nos.90 & 91 in respect of assessment
years 2004-2005.
The basic reason for dismissal of the appeals by the Tribunal is
that the counsel for the appellant was not available and a telegram for
adjournment was sent. It was also observed that in the past also, six dates
were taken. The Tribunal proceeded to decide the application under Section
5 of the Limitation Act, 1963 seeking condonation of 89 days delay
observing that on perusal of the application it was found that the reason of
delay in filing of the appeal was long illness of the family member followed
CWP Nos.10837 and 10881 of 2009 #2#
by death. The Tribunal has also taken notice of the fact that no
documentary evidence in support of the aforesaid fact has been furnished
nor any dates of illness or the relationship of the deceased family member
was disclosed. Accordingly, application was dismissed. Before us, learned
counsel for the petitioner has placed on record Death Certificate dated
27.2.2007 showing that Smt Bimla Devi died on 27.2.2007. The
relationship disclosed in para No.5 of the petition (CWP No.10837 of 2009)
is that the deceased was grand-mother of the proprietor of the firm, who had
died after long illness.
Notice of motion was issued to respondents-State and Ms. Ritu
Bahri, DAG, Haryana has put in appearance. She has supported the order of
the Tribunal.
After hearing learned counsel for the parties, we find that the
Tribunal could have decided the application seeking condonation of delay
after insisting upon the petitioner to place on record documents in support
of the application filed under Section 5 of the Limitation Act, 1963 and it
was only after their inability to furnish those documents that the Tribunal
could have proceeded to decide the appeal. Such a view should have been
taken in view of the fact that the petitioner had already deposited the whole
demand raised on 28.8.2008. It could not be concluded that intentionally
delay was being caused in order to avoid the payment of demand or taking
advantage of any stay order passed by the Tribunal. Ms. Bahri, learned
State counsel, has pointed out that the date of death is 11.2.2007 whereas
the appeal itself had been filed after that date. Be that as it may, the long
illness of the mother of the petitioner, which has ultimately resulted in her
death is a relevant factor and in light of documents, which may be placed
CWP Nos.10837 and 10881 of 2009 #3#
on record /file of the Tribunal by the petitioner, the issue is required to be
examined by the Tribunal. Accordingly, we are of the view that the
petitioner deserves to be given a chance by placing on record all the relevant
documents in support of the application and then the Tribunal could decide
the issue of condoning 89 days delay in filing of the appeal.
In view of the above, order dated 24.12.2008 passed in both the
cases is quashed. The matter is remanded back to the Tribunal for decision
afresh on the application by taking into account the documents regarding
illness and Death Certificate. The parties through their counsel are directed
to appear before the Tribunal on 10.8.2009, however, the same shall be
subject to payment of Rs.5000/- as costs, which shall be paid by the
petitioner to the respondents-State in each case.
A photo copy of this order be placed on the file of connected
case.
( M.M. KUMAR )
JUDGE
July 27, 2009 ( JASWANT SINGH )
manoj JUDGE