2015 (8) TMI 1184 - HC - VAT and Sales Tax

Condonation of delay Invalid service of notice Appellant seeks to set aside impugned order of Tribunal-VAT dismissing its application filed for condonation of 907 days delay in filing appeal as well as appeal, being barred by limitation Held that - Admittedly revenue instead of sending order at address of appellant had sent same to Branch Office of appellant, which as per appellant was never received Tribunal has wrongly drawn presumption of service upon appellant under Section 27 of General Clause Act, 1897 Appellant never requested revenue to send copy of order upon address of its branch office Revenue could not give any satisfactory explanation for not sending copy of order to appellant, upon its address given in memorandum of appeal Well settled that party should not be condemned unheard and case should not be rejected on technical grounds, rather should be decided on merit unless delay is attributable to gross negligence of party Therefore order of Tribunal liable to be set aside Delay of 907 days in filing appeal hereby allowed Tribunal directed to decide appeal of appellant on merit in accordance with law Decided in favour of Assesse.

Summary

Issues:
- Delay in filing the appeal
- Communication of the order
- Presumption of service

Delay in filing the appeal:
The appellant sought to set aside an order dismissing their appeal due to a 907-day delay in filing. The appellant's contention was that the delay was unintentional as they were not informed of the order. The Tribunal had dismissed the application for condonation of delay based on the presumption of service under the General Clauses Act and Indian Evidence Act. However, the appellant argued that the order was not communicated to them at the correct address, leading to the delay. The court held that the Tribunal wrongly presumed service and set aside the dismissal of the appeal, allowing the condonation of the delay.

Communication of the order:
The appellant's address was provided in the memorandum of appeal as a specific location. However, the Deputy Excise and Taxation Commissioner sent the order to the appellant's branch office instead of the designated address. The appellant, upon realizing the order had been passed, contended that they had not received it due to the incorrect address of service. The court emphasized the importance of proper communication and service at the correct address, highlighting the failure in this instance.

Presumption of service:
The Tribunal had relied on the presumption of service under the General Clauses Act and Indian Evidence Act to dismiss the appellant's appeal. However, the court referenced a previous judgment to establish that such presumption can be rebutted if service is not correctly executed. In this case, the appellant had not requested the order to be sent to the branch office, leading to a lack of proper service. The court concluded that the presumption of service was wrongly applied and set aside the Tribunal's decision, directing a review of the appeal on its merits.

In conclusion, the High Court set aside the Tribunal's decision, allowing the condonation of the delay in filing the appeal and restoring the appellant's appeal. The court emphasized the importance of proper communication and service at the correct address, highlighting the need for decisions to be based on merit rather than technical grounds.