2015 (9) TMI 728 - HC - VAT and Sales Tax

Rejection of Application Filed by non-competent person Petitioners have not received notice of posting of case before Tribunal and that, for said reason, they could not appear on that date Respondent dismissed restoration petition as was filed by person not competent to prefer petition Held that - compendious personality like firm will be treated as entity for limited purpose for juridical identity and representation of such entity through competent person identifiable or verifiable as per law It is astonishing that, Tribunal dismissed restoration application for such simple reason that, same has been filed by partner, who is not competent to file such application Tribunal ought not have adopted such hyper-technical approach, while dealing with appeal which require substantial redressal warranting meritorious consideration Therefore holding that there was no sufficient cause by petitioner is erroneous Accordingly, impugned order set aside Decided in favour of petitioner.

Summary

Issues:
Petitioner challenging dismissal of restoration petition for default due to filing by a partner instead of authorised representative, and after the expiry of the filing period under KVAT Appellate Tribunal Regulations, 2009.

Analysis:
The petitioner filed a second appeal, which was rejected, leading to a restoration petition (Ext.P5) and a delay condonation petition. The restoration petition was dismissed for default by the 2nd respondent (Ext.P7), prompting the petitioner to file a writ petition challenging Ext.P7 order. The petitioner claimed non-receipt of notice for the case posting before the Tribunal as the reason for their absence.

The impugned order cited the restoration application being filed by a partner, not the authorised representative who filed the appeal, and the application being submitted after the 14-day filing period under KVAT Appellate Tribunal Regulations, 2009. The petitioner argued that a partner of the firm, being competent to sign and verify returns, had the right to initiate action under the Act and Rules. The Tribunal's dismissal of the restoration application based on technicalities was criticized, emphasizing that a firm is a legal entity represented by competent individuals, and the Tribunal erred in not considering the petitioner's claim of non-receipt of communication.

The Court set aside the impugned order (Ext.P7), restoring the appeal on file. It directed the Tribunal to consider the application after issuing necessary notice to the petitioner, highlighting the need for a substantive review rather than a hyper-technical approach.