2016 (2) TMI 51 - HC - VAT and Sales Tax

Petition for condonation of delay by computing the delay of 119 days in filing the appeal from the date of receipt of the order - Held that - It is seen that without considering the counter affidavit, especially, paragraph 8, wherein,the delay in filing the appeal is calculated to the tune of 134 days, the Tribunal passed the order. - the date of service of the order of the Appellate Tribunal to the State s representative as the actual date to be taken into consideration for calculating the period of limitation and if that is being taken into consideration, it is apparent that the filing of appeal is beyond the condonable period and hence, the impugned order in this Writ Petition deserves to be set aside. - Writ Petition is allowed

Summary

Issues:
1. Disallowance of exemption claim on consignment transfer.
2. Appeal filed with a delay of 134 days.
3. Condonation of delay in filing the appeal.
4. Calculation of limitation period for appeal.

Analysis:
1. The petitioner, a re-roller of iron and steel products, challenged the disallowance of exemption on consignment transfer during the assessment year 1993-94 by the first respondent. The appeal was partly allowed and partly dismissed by the second respondent, leading to a further appeal to the Sales Tax Appellate Tribunal by the third respondent. The delay in filing the appeal was the primary issue.

2. The petitioner contended that the appeal filed by the third respondent was beyond the limitation period of 120 days, as it was filed with a delay of 134 days. The petitioner cited relevant legal precedents to support the argument that the condonation petition filed by the third respondent exceeded the condonable period under Section 36(1) of the TNGST Act.

3. The third respondent sought condonation of the delay by calculating it as 119 days from the date of receipt of the order. However, the petitioner argued that the appeal should have been filed within 120 days from the date of service on the first respondent or their authorized representative. The petitioner's counter affidavit highlighted the delay of 134 days, challenging the third respondent's calculation.

4. The High Court observed that the Tribunal's order did not consider the counter affidavit provided by the petitioner, which calculated the delay as 134 days. Referring to previous court decisions, the High Court emphasized that the date of service of the order to the State's representative should be the actual date for calculating the limitation period. Consequently, the High Court set aside the impugned order, allowing the writ petition and closing the related motion.