SCA/8863/2008 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8863 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= V.K. PATEL & CO. - Petitioner(s) Versus STATE OF GUJARAT - Respondent(s) ========================================================= Appearance : MR DC DAVE for Petitioner(s) : 1, GOVERNMENT PLEADER for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MR.JUSTICE AKIL KURESHI Date : 03/07/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE JAYANT PATEL) SCA/8863/2008 2/4 JUDGMENT 1. Rule. Mr. Nanavati, learned AGP appears for the respondent and waives service of notice of rule on behalf of the respondent. With consent of the learned advocates appearing for both the sides, matter is finally heard today. 2. The petitioner has preferred the petition for challenging the legality and validity of the order dated 20.12.2007 passed by the Gujarat Value Added Tax Tribunal, Ahmedabad in Second Appeal No.380/2007 whereby the delay in preferring the Second Appeal is not condoned and the appeal is dismissed. 3. Mr. Dave at the outset, declared before the Court that the petitioner is agreeable to pay the cost as may be found proper by this Court for compensating the delay caused in preferring the appeal. 4. Mr. Nanavati has no objection if suitable amount of cost is imposed and delay is condoned. 5. Considering the facts and circumstances, it appears to us that the Tribunal has not examined the aspect as to whether the delay could be condoned on compensating the respondent by awarding suitable cost or not. It appears that as per the Tribunal there was no explanation for SCA/8863/2008 3/4 JUDGMENT delay. Further, the delay even as per the Tribunal is of about more than a month and in any case not exceeding two months. Even if the Tribunal was of the view that there was no sufficient explanation and delay was not properly explained, it was required for the Tribunal to examine the aspect as to whether such delay has altered the rights of the parties or whether such delay could be compensated by awarding suitable cost to the respondent. As the said aspect is not examined by the Tribunal, it can be said that error apparent on the face of the record is committed. 6. Considering the facts and circumstances and keeping in view the subject matter of the appeal, it would be just and proper to award cost of Rs. 5,000/- to the respondent State Government for compensating the delay caused by the appellant in preferring the Second Appeal. It may also be observed that as the Second Appeal is yet to be considered by the Tribunal on merits, after the payment of cost, the Second Appeal can be heard on merits in accordance with law by the Tribunal. 7. It was submitted by the learned Counsel for the petitioner that there is a good case on merits but the said aspect was not accepted by the respondent State Government. However, we find that it may not be necessary for this Court at SCA/8863/2008 4/4 JUDGMENT this stage to examine the said aspect since the appeal is yet to be heard by the Tribunal on merits. 8. In view of the above, the impugned order dated 20.12.2007 passed in Second Appeal No.380/2007 is quashed and set aside on condition that the petitioner pays an amount of Rs. 5,000/- as the cost for delay with the respondent i.e. Joint Commissioner of Commercial Tax(Appeals) at Rajkot within two weeks from today. After compliance with the aforesaid condition, the Second Appeal No. 380/2007 shall stand restored to file of the Tribunal. The Tribunal shall decide the appeal in accordance with law on merits after hearing both the sides. It is made clear that rights and contentions of both the sides on merits of the Second Appeal shall remain open. 9. Petition allowed to the aforesaid extent. Rule made absolute accordingly. Direct service is permitted. (Jayant Patel,J.) (Akil Kureshi,J.) (raghu)