NASIM SIKANDAR, J.-- Section 46 of the Sales Tax Act, 1990 provides for appeals to the Appellate Tribunal by any person including the Sales Tax Department within 30 days of the date of communication of an order recorded by the concerned officer of Sales Tax. Sub-section (2) Of section 46 however, allows discretion of the Tribunal to admit any appeal preferred after the period the period of limitation specified in sub section (1) if it is satisfied that there was "sufficient cause," for not presenting the appeal within the specified period.
2. A partnership firm before us on being served with a notice by the Sales Tax Department denied the applicability of the charging provisions of the Act on the basis of nature of- services provided by it. However, the department disregarded the contention and by way of order dated April 2B, 2001 found the appellant liable to registration. Instead of filing an appeal before the Tribunal the appellant appears to have made a representation to the Department to look into the matter and to re-consider their decision conveyed by way of the aforesaid letter. Having received no response from the Department the appellant approached this Court in Constitutional Petition No. 12657/01 which was disposed of by Mr. Justice Jawwad S. Khawaja with the observations that the petitioner could avail the remedies available to it under the Sales Tax Act, 1990.
3. Thereupon the appellant filed an appeal before the Tribunal which was coupled with an application to condone the delay on the ground that of its having been agitating the matter bona fide before a wrong forum. The learned Division Bench of the Tribunal by way of impugned order dated 4.9.2001 however, refused to condone the admitted delay of 43 days. After considering the case-law relied upon the appellant before them including re: Altaf Hussain vs. Muhammad Nawaz (2001 SCMR 405) + (2001 PSC 307) and re: Abdul Majeed and another vs. Ghulam Haider and others (2001 SCMR 1254), the learned Tribunal refused to condone the delay. Also it was found that in the fact before them the ratio settled in re: Chief Administrator of Auqaf v. Muhammad Ramzan (PLD 1991 SC 102f cit-ed at the bar for the Department was clearly attracted. Accordingly the application seeking condonation of delay was rejected and the appeal was dismissed being barred by time.
4. Heard the learned counsel for the parties. Learned counsel for the appellant has relied upon the aforesaid judgments earlier cited before the Tribunal while the learned counsellor the revenue has further placed reliance upon re: Abdul Razzak v. Ch. Sultan Mohd. Khan, Sett, and Reh. Commr, etc. (PLJ 1973 Lahore 433) and re: Muhammad Ismail v. Mst. Zubaida Khatoon (PLD 1973 Karachi 503) to contend that refusal of the Tribunal in the given facts is not open to exception.
5. Having considered the submissions made at the bar we are of the view that the power to condone the delay conferred upon the Tribunal under the aforesaid provisions of law is wider than the one contained in section 5 of the Limitation Act, 1908. It is for the reason that the notion of accrual of valuable right to an adversary after the lapse of limitation in ordinary cases of civil nature is not generally applicable to the matters of revenue, In such cases since it is always the state against a citizen or assessee, the interest of immediate recovery cannot be described as accrual of a valuable right. Even otherwise the kind of right coming into being by reason of default of a party to approach a particular forum within a specified time is not an absolute right nor does it frustrate exercise of judicial discretion wherever a condonation is provided for in a statute, It hardly needs emphasis that tax in every form is an exaction of money from the subject and its recovery when becomes due does not generally hit by any limitation in terms of time. The recovery of revenue by state certainly contains an element of public interest. However, such interest cannot be equated with the accrual of a valuable right which an individual may normally acquire against another. In re: Abdul Waheed v. The State (PLD 1960 (WP) Lahore 85) this Court condoned the delay under section 5 of the Limitation Act in filing of a criminal appeal on the ground that on delay no valuable right accrued to the opposite party, the state.
6. We have another reason to hold for a liberal interpretation of the aforesaid provisions allowing a discretion to the Tribunal to condone the delay, In matters of civil nature the basic purpose to curtail limitation by law of limitation is to bring the proceedings to a foreseeable end and to clothe them with finality so that people may feel secure in their rights to their person and property when the prescribed limitation had run of. In revenue matters, on the other hand, a demand once created and duly conveyed to the subject is not conditional to a fixed period of recovery nor would it automatically lapse if not recovered within a certain period. A demand created in accordance with law is a sword which keeps on hanging on the head of a citizen till the liability is discharged.
The revenue though an equal party before the Tribunal is certainly at an advantageous position vis a vis the assessee, therefore, it is necessary that the prescribed limit in the statute and the discretion given wherein to the Tribunal should be exercised objectively, It does not however, mean that every such request should be allowed as a matter of course. The prayer for condonation whether it is from the assessee or the revenue must not be considered when it is found to be contumacious and frivolous. The exercise of discretion in favour of an indolent appellant would certainly be detrimental to the judicial system that we all feel proud of.
7. Another reason for our lenient view of the delay is also peculiar to the tax proceedings when compared with other civil or criminal litigation, It is the representation on behalf of a citizen.
Generally in proceedings before the Courts of general jurisdiction it is lawyers or Advocates, who represent the parties while in tax proceedings particularly those under the Sales Tax Act the representation is allowed to be made by authorised representatives. According to section 52 of the Act a person required to appear before the Appellate Tribunal or an officer of Sales Tax in connection with any proceedings under the Act can authorise any other person to represent him or appear on his behalf, It such authorised representative is not trained in law or a similar branch of knowledge, the yardstick applied in cases of lawyers and Advocates in the matters of delay should certainly be different, In cases involving pure question of law and legal intricacies it would not be realistic to expect a common man or a representative of an assessee to have the same degree of legal accuman as those who were particularly trained in law or are qualified Accountants. We have precedents from superior Courts even in case of lawyers from mofussil who were treated leniently when compared with their fraternity engaged in practice at the principal seat of a superior Court. A Full Bench of Allahabad High Court was considering an application under section 5 of the Limitation Act for condonation of delay in re: Shib Dayal and another v. Jagannath Prasad (636 All 44 XLTV) decided on February 27, 1922. The appellant before their Lordships did not file a copy of the order of the Court of first instance which was mandatory. After an objection by the office the required copy was filed. However, in the meantime, the prescribed limitation had already gone, In the application under section 5 of the Limitation Act it was placed by the appellants that their vakil conducting the case at District Courts had advised them that filing of order of the original Court was not necessary. During the arguments Justice Stuart suggested deviation from their earlier decisions and proposed following of English precedents after mentioning the case re: Hesly (1894) 1 Q.B. 742.
Sir Grimwood Mears, C.J. While speaking for the Bench however, preferred following of the earlier practice of the Court and to allow the application considering the mistake of the counsel to be a "sufficient cause" for the late filing of copies. The reason that persuaded the Full Bench to allow the request for condonation as a policy being "an honest mistake even though negligent one ought not in the present state, of profession in the Districts be allowed to operate to the prejudice of clients."
8. To condone or not to condone a delay certainly rests upon the consideration of "sufficient cause" which actually means the peculiar circumstances of that very case. Every case needs to be considered keeping in view the facts prevailing therein. There cannot .Therefore, be a precise definition of "sufficient cause" nor there can possibly be laid down the exact para-meters which could fit in the situation in every case. An attempt to define "sufficient cause" would amount to curtail judicial power and discretion which the legislature has left open and un-fettered in the forum which in this case is the Tribunal. Some general principles have, however, been laid down by the superior Courts, In 636 All 44 (Supra) Justice Prama Charan Benerji though agreeing with the conclusion reached upon by his peers recorded a separate note with these remarks: what constitutes sufficient cause cannot be laid down by hard and fast rules. The sufficient cause must be determined on a reference to the circumstances of each case, In my opinion the expression "sufficient case" should be liberally construed so as to advance substantial justice." These findings are being followed by the Courts in both India as well as in Pakistan till date.
9. Although these are no specific provisions in Sales Tax Act equivalent to section 14 of-the Limitation Act which provides for exclusion of the time taken in proceedings bona fide in Court without jurisdiction yet the Tribunal was legally competent to consider the submissions in the context of the "sufficient cause" being placed before them. The case-law relied upon by the learned counsel for the petitioner before the Tribunal and then before us supported their claim as a general preposition. On the other hand the aforesaid judgments relied upon by the learned counsel for the revenue are clearly distinguishable. Again for the simple reason that in revenue matters a prayer for condonation by an assessee/citizen must be considered objectively.
10. In re: Controller Land Acquisition v. Mst. Katiji and others (1987) 56-Tax-130 (S.C. India), their Lordships laid down general principles for adherence while deciding applications for condonation Under section 5 of the Limitation Act. These principles in our opinion must be kept in mind by every judicial or quasi-judicial forum while dealing with questions of condonation of delays.
11. M.P. Thakkar, J. Speaking for. The Court favoured a justice oriented approach by finding that:-
(i) Ordinarily, a litigant does not stand to benefit by lodging an appeal late.
(ii) Refusing to condone delay can result in a meritorious matter being thrown of at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties.
(iii) "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational, common sense and pragmatic manner.
(iv) When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
(v) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay, In fact, he runs a serious risk.
(vi) It must be grasped that the 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.
12. To the above list we would like to add our view expressed earlier that in Revenue matters the prayer for condonation by an assessee/citizen should all the more be considered sympathetically.
Our reasons for leniency have already been counted above.
13. Being in respectful agreement with the above findings of their Lordships and our own addition to the list, we are of the view that prayer for condonation of delay in the case in hand was neither, contumacious nor the appellant could possibly gain anything by deliberately knocking at a wrong forum.
14. Therefore, this appeal is allowed. Resultantly, the appeal filed by the appellant shall be deemed pending before the Tribunal which shall be heard and decided on merits in accordance with law after hearing both the parties.