2011 (7) TMI 1050 - HC - VAT and Sales Tax

Condonation of delay - Held that - In view of the delay beyond the period of 180 days after prescribed period of 30 days for filing appeal would not have been condoned by the appellate authority and the same is illegal and once the entertainment of appeal by the appellate authority by condoning the delay is held to be illegal, ought to have dismissed the appeal. Order passed in appeal cannot be sustained, though revisional authority has gone into the merits of the case, it was unnecessary to go into the merits of the case when it was held that the appellate authority had no jurisdiction to condone the delay. The appeal was liable to be dismissed on the ground of limitation itself and that the appellant would not be caused any prejudice in further proceedings.

Summary

Issues:
1. Condoning delay in filing appeal under section 64(1) of the Karnataka Value Added Tax Act, 2003.
2. Jurisdiction of appellate authority to condone delay beyond prescribed period.
3. Authority to receive notice on behalf of the appellant.
4. Legality of order passed by revisional authority setting aside the order of the appellate authority.

Analysis:

1. The appeal was filed by the assessee challenging the order passed by the Assistant Commissioner of Commercial Taxes, Bangalore, under section 64(1) of the Act. The revisional authority set aside the order passed by the appellate authority, which had condoned the delay in filing the appeal. The revisional authority held that the delay of 277 days could not be condoned beyond the prescribed period of 180 days under section 62(2B) of the Act. The contention of the appellant that the delay was properly condoned by the appellate authority was rejected by the revisional authority.

2. The appellate authority had condoned a delay of 67 days in filing the appeal, even though the appeal should have been filed within 30 days from the date of service of notice as per section 62 of the Act. The revisional authority held that the appellate authority had no jurisdiction to condone the delay beyond the prescribed period. The revisional authority set aside the order passed in appeal and upheld the order of the investigating authority, citing the illegality of condoning the delay by the appellate authority.

3. The appellant contended that the notice was not served upon them directly, but on a person authorized to receive notice on their behalf. However, the court found that the person in-charge, who received the notice, had represented the appellant before the authorities. The court held that it was not open for the appellant to argue that the person in-charge was not authorized to receive notice on their behalf.

4. The court carefully considered the contentions of both parties and reviewed the materials on record. It concluded that the delay in filing the appeal could not have been condoned by the appellate authority beyond the prescribed period. The court found that the order passed by the appellate authority condoning the delay was illegal, and the appeal was dismissed as barred by time. The order issued by the investigating authority was upheld, and the court found no error or irregularity in the order passed by the revisional authority.

In conclusion, the appeal was dismissed as the delay in filing the appeal could not be condoned beyond the prescribed period, and the order passed by the appellate authority was deemed illegal.