2014 (7) TMI 491 - HC - VAT and Sales Tax

Validity of Commissioner s order in revision - Commission remanded back the matter to assessing officer instead of to the first appellate authority i.e Joint Commissioner - Held that - A right of appeal is a statutory right given to the assessee under the Act and just because an appellate authority committed a mistake in passing the order, it does not mean the assessee, who has a right of appeal should be deprived or denied of that right itself. An examination of the assessment order by the appellate authority one way or the other, while can still leave an opportunity to the assessee to take up the matter further, by way of an appeal to the Tribunal, no order by an appellate authority one way or the other, can also deprive further opportunity to the assessee, if the assessee is aggrieved by the order of the appellate authority. Order of the Commissioner set aside only insofar as it relates to the order allowing the matter to stand as it is, but instead remand the matter to the first appellate authority for reconsideration of the appeal of the assessee on the merits of the appeal and in accordance with the statutory provisions. - Decided partly in favour of assessee.

Summary

Issues: Delay in filing appeals under the Karnataka Value Added Tax Act, 2003; Revisional jurisdiction of the Commissioner under section 64 of the Act; Right of appeal for the assessee; Setting aside orders of the Appellate Commissioner without remanding the matter.

In the judgment delivered by D.V. Shylendra Kumar J., the court addressed the delay of 222 days in filing appeals under section 66 of the Karnataka Value Added Tax Act, 2003. The appellant sought condonation of the delay through I.A. I/2012 under section 5 of the Limitation Act. The court, after considering the explanation provided in the affidavit, accepted the delay condonation and admitted the appeal. The appeals were taken up for disposal with the consent of the counsels, as there was a limited question involved in the appeals.

Regarding the revisional jurisdiction of the Commissioner under section 64 of the Act, the court considered the argument presented by the appellant's counsel. It was contended that the Commissioner, after exercising revisional jurisdiction, merely left the matter as ordered by the assessing authority, which effectively deprived the assessee of the right of appeal. The court emphasized that the right of appeal is a statutory right granted to the assessee, and even if the appellate authority erred in its decision, the assessee should not be denied the opportunity to appeal further. The court concluded that the Commissioner's order setting aside the Appellate Commissioner's decision without remanding the matter for a fresh consideration on merits could not be sustained to the detriment of the assessee.

In light of the above, the court allowed the appeals, setting aside the Commissioner's order that allowed the matter to remain unchanged. Instead, the court remanded the matter to the first appellate authority for a reconsideration of the appeal on its merits and in compliance with the statutory provisions. The court directed the appellant-assessee to appear before the appellate authority on a specified date to take further instructions.

In another set of appeals, I.A. I/2012 was filed to condone a delay of 222 days in filing the appeals. The court accepted the explanation provided in the supporting affidavit and condoned the delay. These appeals were also allowed in accordance with the order passed in the previous appeals. The judgment highlighted the importance of ensuring that the assessee's right of appeal is not unjustly curtailed and emphasized the need for a proper reconsideration of appeals on their merits.