2008 (7) TMI 867 - HC - VAT and Sales Tax

Condonation of Delay - Whether there is no provision under the Punjab Value Added Tax Act, 2005 to file any supplementary appeal or a second appeal against the same order? Held that - Earlier, the appeals were filed within limitation and fresh appeals were also filed just within 30 days of the withdrawal of the earlier appeals. Therefore, while filing the fresh appeals, applications for condonation of delay were filed and the Tribunal, by taking into consideration the facts and circumstances of the case, condoned the delay and entertained those appeals. No illegality in entertaining those appeals. The contention of learned counsel for the appellant that since the earlier appeals were filed without sanction order, therefore, the second appeals should not have been entertained, cannot be accepted, because if there was no-sanction, then there was no appeal and the subsequent appeals were rightly entertained by the Tribunal, after condoning the delay. Regarding the contention of the appellant that the Tribunal had no jurisdiction to permit the appellant to withdraw the earlier appeals with liberty to file fresh appeals and the earlier appeals will be deemed to be dismissed on merits, section 63(4)(b) of the Act clearly provides that the Tribunal after affording an opportunity of hearing to the parties, may pass such order, as it deems to be just and proper. As under this clause, the Tribunal is empowered to permit an appellant to withdraw the appeal and file fresh one after removing the defects, pointed out by the other side. Appeal dismissed.

Summary

Issues:
1. Entertaining second appeals after earlier appeals were dismissed without liberty to file fresh appeals.
2. Maintainability of appeals filed without proper sanction order.
3. Jurisdiction of the Tribunal to permit withdrawal of appeals with liberty to file fresh appeals.

Analysis:
1. The appeals were filed by the department challenging an order remanding a matter for fresh decision. The department initially filed appeals without proper sanction, which were later withdrawn by the Tribunal upon the department's request to file fresh appeals with proper sanction. The fresh appeals were filed within 30 days of the withdrawal of the earlier appeals. The Tribunal entertained the fresh appeals after condoning the delay, leading to the current appeals being filed. The appellant argued that the second appeals should not have been entertained as the earlier appeals were dismissed without liberty to file fresh appeals. However, the court found that the prayer to file fresh appeals after removing defects in the sanction order was not specifically rejected when the earlier appeals were dismissed, implying acceptance. The court cited legal principles that permission to file fresh appeals could be impliedly granted in such circumstances.

2. The petitioner objected to the maintainability of the appeals filed without proper sanction. The court noted that the fresh appeals were filed within the limitation period and applications for condonation of delay were submitted. The Tribunal, considering the facts and circumstances, condoned the delay and entertained the appeals. The court held that if there was no sanction for the earlier appeals, then there was no valid appeal, justifying the Tribunal's decision to entertain the subsequent appeals after condoning the delay.

3. The appellant contended that the Tribunal lacked jurisdiction to permit withdrawal of appeals with liberty to file fresh appeals. The court referred to section 63(4)(b) of the Act, which empowers the Tribunal to pass orders it deems just and proper after affording an opportunity of hearing to the parties. The court interpreted this provision to allow the Tribunal to permit an appellant to withdraw an appeal and file a fresh one after rectifying defects. Consequently, the court found no grounds to interfere with the impugned order and dismissed the appeals, concluding that they lacked merit.