2012 (1) TMI 144 - HC - VAT and Sales Tax

Condonation of delay for restoration of appeal refused - Held that - The petitioner under a bona fide belief that the period of limitation of 60 days was prescribed for filing restoration application, had filed the application on April 15, 2011 which, however, turned out to be delayed by 30 days. The plea of the assessee is plausible one and under the circumstances, it cannot be said that the delay was intentional or with mala fide intention. Further, the petitioner would not gain anything intentionally by filing the restoration application belatedly. Accordingly, the delay in filing the restoration application is condoned. While taking up the order dated January 21, 2011 passed by the Tribunal, it needs to be referred that counsel for the petitioner before the Tribunal Shri Mohit Malik had sent an application seeking an adjournment stating that he was suffering from viral fever which was supported by medical certificate. In such circumstances, it cannot be said that the medical certificate, a copy of which has been appended as annexure P5 with this petition was not a genuine document. The Tribunal was, thus, not justified in passing the order dated January 21, 2011 in the absence of the counsel for the petitioner. W.P. allowed

Summary

Issues:
Challenge to order refusing to condone delay for restoration of appeal.

Analysis:
In this writ petition, the petitioner, a partnership firm engaged in manufacturing ayurvedic medicines, challenged the order of the Haryana Tax Tribunal refusing to condone the delay for restoration of appeal. The assessing authority had categorized the products as cosmetics, perfumes, etc., under the Haryana General Sales Tax Act, 1973, instead of ayurvedic medicines. Appeals were made to the Joint Excise and Taxation Commissioner (Appeals) and then to the Tribunal. The Tribunal dismissed the appeals ex parte on January 21, 2011, despite the counsel's request for an adjournment due to viral fever. The petitioner filed a restoration application after 30 days, believing erroneously that a 60-day period applied. The court considered the delay, the counsel's genuine illness supported by a medical certificate, and the petitioner's lack of intentional delay.

The court found merit in the petitioner's submissions, noting the genuine belief regarding the limitation period for filing the restoration application. The delay of 30 days was not intentional or malicious. The court also acknowledged that the counsel's absence due to illness, supported by a valid medical certificate, was a valid reason for adjournment. The Tribunal's decision on January 21, 2011, in the absence of the petitioner's counsel, was deemed unjustified. Therefore, the court decided to set aside the order and remand the matter to the Tribunal for a fresh decision on merits in accordance with the law. The court emphasized that the delay in filing the restoration application was condoned in the interest of justice, considering the circumstances.

In conclusion, the writ petition was disposed of accordingly, with the court overturning the order of the Tribunal and directing a reevaluation of the matter on its merits.