MALICE TOWARDS NONE

1. Apex Court advises the judiciary to dispose of matters within a period of maximum 60 days from the date of hearing

In the recent past you must have noticed from various press reports that the Apex Court has come down heavily on the pendency of cases in various Courts and Tribunals. Of course, to some extent the Government is responsible for this scenario, but can it be said that the persons at the helm of decision making in quasi-judicial proceedings are not a party to the said scenario ? It is in this context and malice towards none, we propose to analyse few areas where we, as a system, are not working in a time bound manner, to dispose of the matters on hand and thereby the pendency of cases mounts high and very high.

2. I recall a first and warm meeting that I had with the then Commissioner Shri V.S. Gopalakrishnan in the month of April 1994. During the meeting he posed a question to me that he was very much disturbed with the pendency of First Appeal and Second Appeal and whether I can suggest any solution to reduce such pendency or the piling of appeals in future so as to reduce them drastically. I thereupon replied to him that the majority of appeals pending at both the stages are in respect of levy of interest and penalties, which are not really sustainable in the eye of law. As regards the remission of interest u/s 36(3) w.e.f. 21-4-1987 the character of penalty under this sub-section was changed to levy of interest in respect of delayed payments as per returns filed. However, there were large number of cases in which under the BST Act, there was a refund and under the CST Act; there was a demand and vice versa. Or, refund was arising on actual assessment. However, in actual practice, the Assessing Authorities (AOs) were not granting the remission of interest based on the well settled "out-of-pocket theory" or based on the concept of legal dues as per law instead of the dues accepted as per returns filed. Hence, dealers were required to go in First and Second Appeals to get this type of relief. Indeed, it was a unproductive work for both; i.e., the Department and the dealer’s representatives. According to a reasonable estimate then, such pendency of appeals was more than 50 to 60 per cent. I therefore suggested to the Learned Commissioner that filing of appeals can be stopped instantly if the powers of remission u/s 36(3) first proviso, are delegated by the Commissioner to the Assessing Authorities on the settled issue of application of "out of pocket theory". He instantly saw merit in my suggestion and stated that very soon he shall issue such an order and also thanked me profusely. Thereafter, as assured, he passed the order accordingly, bearing No. PWR-1093 / 2 / Adm-3 dated 29th April, 1994 (published separately in Part-III of the Review). However, for a long time since I did not come across of such an order being passed by him, I enquired with him and stated politely but firmly that he has not kept his word. Thereupon, I could notice that he was visibly disturbed and called for the file and showed me that the order was passed on 29-4-1994 but the concerned officials failed to gazette it. He, in the circumstances appreciated my straightforward reaction to the said issue. As such, in my presence, he had called his Secretary and given instructions that the order should be sent to the Government Printing Press to be printed in the Gazette forthwith. Yet, although the order was passed on 29-4-1994 it was gazetted only on 13-10-1994. In the meantime, if I recollect well, he was transferred.
    

3. The further sad part of the story is that the above order was not implemented by the Assessing Authorities, and no Commissioner in office got the same implemented or he may not even be knowing about its existence. As a result, the beneficial and pragmatic order to both the parties to the litigation remained in a cold storage. In some cases of mine, I could make use of it. The above order was also published in the STR for the benefit of both the parties; i.e., dealers and the departmental authorities. Based on this experience, we find it difficult to improve upon the justice imparting system. Here, clearly, the administration has miserably failed over these years in implementing the above referred order and, as in the past, the pendency of appeals has hugely increased.
    

4. As a matter of fact, I had suggested to Shri Gopalakrishnan that the First Appeal stage is of no use, since there is no effort on their part to do justice in the appeal. However, he regretted that what he will do with the manpower if the suggestion is accepted by him. He further stated that even if he feels strongly on the points so raised, the Government will not accept his suggestion to do away with First Appeal stage.

2. Delay in pronouncing the judgments by the Hon’ble Tribunal and filing of Misc. Applications by the Department

1. For the last many years, it is our common experience that the Benches of the Hon’ble Tribunal excluding Bench-I of the Hon’ble President, take a very long time in pronouncing the judgments from the date of final hearing. Keeping in mind the fact that human memory is short and to err is in human nature, the late pronouncement of judgments also affects its quality inasmuch as, the large number of facts argued by both the parties are lost from the memory of the Bench, who heard the matter. It is therefore ideal that the Hon’ble Bench pronounces the judgment, say, within a period of 30 days or at the earliest point of time from the date of final hearing of the case.
    

2. Regulation 27 of the Bombay Sales Tax Tribunal Regulations, 1960 dealing with pronouncement of judgment makes the following provision:–

"27 (1) When the hearing of an appeal or application is complete, the Tribunal may announce the substance of the judgment which is intended to be given or fix a date on which the judgment is to be pronounced. Such date shall be notified on the notice board of the Tribunal. On the date so fixed the decision signed by the members of the Bench which heard the appeal or application may be pronounced by any member of the said Bench, including the President.

(2) Every judgment of the Tribunal shall be in writing."

3. Regulation No. 40 is to be applied in case of matters not provided for in the regulations. This regulation reads as under:

"40. The Tribunal shall, in any matter not provided for in these regulations, follow the procedure, as far as it is applicable, laid down in the Code of Civil Procedure, 1908."

4. It is true that in Regulation No. 27 no time limit is prescribed for pronouncement of judgment. However, Regulation No. 40 which is of a residual nature clearly says that CPC procedure is required to be followed – "in any matter not provided for in these regulations." Therefore, to my mind, where in Regulation 27, the time limit is not prescribed for pronouncement of judgment, the CPC provisions should be applied.
    

5. Accordingly, we have noticed that CPC Schedule-I, Order XX Rule-1 which deals with "Judgment when pronounced" the provision reads as under:–

"1. The Court, after the case has been heard shall pronounced judgment in an open Court, either at once or as soon as thereafter as may be practicable and when the judgment is to be pronounced on some future day, the Court shall fix a day for that purpose, of which due notice shall be given to the parties or their pleaders:

Provided that where the judgment is not pronounced at once, every endeavour shall be made by the Court to pronounce the judgment within thirty days from the date on which the hearing of the case was concluded but, where it is not practicable so to do on the ground of the exceptional and extraordinary circumstances of the case, the Court shall fix a future day for the pronouncement of the judgment, and such a day shall not ordinarily be a day beyond sixty days from the date on which the hearing of the case was concluded, and due notice of the day so fixed shall be given to the parties or their pleaders."

6. Further Schedule-I Order XLI, Rule 30 deals with Judgment in Appeal. This rule is as under: -

"30(1) The Appellate Court, after hearing the parties or their pleaders and referring to any part of the proceedings, whether on appeal or in the Court from whose decree the appeal is preferred, to which reference may be considered necessary, shall pronounce judgment in open Court, either at once or some future day of which notice shall be given to the parties or their pleaders."

7. In Order XX-1 as well as in Order XLI-30 pertaining to pronouncement of judgment, the time limit mentioned is "either at once or some future day". But if the above orders are harmoniously read, it appears that the intention of the law is that judgments should be pronounced within 30 days or on the ground of exceptional and extraordinary circumstances 60 days, from the date of completion of hearing.
    

8. It is therefore humbly suggested that the Hon’ble Tribunal should follow the above CPC provisions, to avoid delay in pronouncement of judgments, which will also be in compliance of the Supreme Court directive that as far as possible the judgments are delivered within 30 days time by the lower tier of judiciary.
    

9. Recently, we have come across a case which was finally heard by the Tribunal but in which Judgment was pending for over 60 days. The Department took advantage of this position and sounded the Tribunal that they are proposing to file a Misc. Application. Later on, before the Department could file the proposed Misc. Application, the Hon’ble Tribunal fixed the case for rehearing. Thereafter, the Department has filed Misc. Application. Of course, this approach of the Department is being contested before the Hon’ble Tribunal. But the moot point here is, had the Tribunal passed the order at the earliest point of time, the Dept. would not have been able to file a Misc. Application. In this connection, I recall an order dated 20-4-1994 passed by Bench-I, in the matter of M/s Waman Hari Pethe, in Misc. Applications Nos. 79 & 80 of 1994 filed by the Department on the date of final hearing, seeking adjournment, in which the Hon’ble Tribunal imposed cost of Rs. 200/- on the Department for filing Misc. Application on the last date of hearing of which due notice was given to the Department. Earlier, the Department had also taken two adjournments which were protested by the appellant. This "Precedent" may also be followed by the Hon’ble Tribunal so as to curb the practice of the Department to file Misc. Applications at the last moment or even after the matter is closed for judgment and order. For ready reference, this order is being published once again in Part-III of the Review for the benefit of all concerned.

3. Delay by the Hon’ble Commissioner in deciding DDQ Applications

Determination of disputed questions put forward by dealers to the Hon’ble Commissioner has been a very good feature of the BST Act, 1959. As such, the same provision was incorporated in the MVAT Act, 2002.

2. However, in the absence of any time limit for the disposal of such applications, it lost its very purpose for which this provision was brought on the statute book. There are cases where applications are pending for over 3 years and the orders are delayed for a long time after the date of final hearing.
    

3. To resolve this issue, it is humbly submitted that the Act should be amended incorporating therein a provision that the Determination Application filed, should be decided within a period of say 3 months time. Pending such a provision being made in the Act, the Hon’ble Commissioner himself should abide by the above time limit voluntarily for the disposal of the Determination Application, in the interest of all concerned. Of course, it goes without saying that we should also co-operate and take initiative in the matter, so that he is able to dispose of the DDQ Applications within a period of 3 months.