2017 (3) TMI 697 - HC - VAT and Sales Tax

Condonation of delay of 548 days - denial on the ground that the delay was not explained properly - Held that - from the date of alleged breach the cancellation order is passed after a period of approximately 12 years. Under the circumstances and in the aforesaid facts and circumstance, the learned Tribunal has committed any error in quashing and setting aside the order passed by the Deputy Commissioner cancelling exemption registration/ certificate abinitio. Under the circumstances, appeal lack merits and therefore, to issue rule in the present application and called upon the dealer, thereafter to condone the delay and thereafter dismissed the appeal would be exercise in futility and it will cause undue hardship to the dealer as the dealer is required to be incurred expenditure for engaging lawyer etc in appeal, which lack merits - delay not condoned - appeal dismissed - decided against appellant.

Summary

Issues:
Delay of 548 days in preferring Tax Appeal against the judgment and order dated 23.04.2015 passed by the Gujarat Value Added Tax Tribunal. Explanation for the delay insufficient. Appeal dismissed based on lack of merit.

Analysis:
The present application under Section 5 of the Limitation Act sought to condone a delay of 548 days in filing a Tax Appeal against the Gujarat Value Added Tax Tribunal's decision. The Tribunal had allowed the dealer's appeal and set aside the order cancelling an exemption certificate after 11 years. The High Court, comprising MR. M.R. Shah and MR. B.N. Karia, JJ., noted that the delay was inadequately explained, with no justification provided for a significant period. Citing the decisions of the Hon'ble Supreme Court, the Court found the application undeserving of condonation and dismissed it.

To assess the appeal's merit, the Court examined the impugned judgment and order by the Tribunal. The cancellation of the exemption certificate after 11 years was highlighted, along with discrepancies in tax demands and relief granted to the dealer. The Tribunal's remand order and subsequent actions by the Deputy Commissioner were scrutinized, leading to the conclusion that the cancellation of the certificate was unwarranted. The Court emphasized the dealer's financial burden in pursuing the appeal and ultimately dismissed the application and the Tax Appeal, as well as related matters.

The Assistant Government Pleader argued against the Tribunal's observation of an 11 to 12-year delay, contending that the Deputy Commissioner rightly cancelled the exemption certificate due to identified breaches. However, the Court pointed out that the remand order did not authorize cancellation, and the significant delay in taking such action raised questions about the validity of the decision. Considering the circumstances and facts, the Court upheld the Tribunal's decision to quash the cancellation order, finding the appeal lacking in merit and dismissing it, citing the unexplained delay and absence of substantial grounds.

In conclusion, the High Court dismissed the application to condone the delay in filing the Tax Appeal, emphasizing the lack of sufficient explanation for the delay and the absence of merit in the appeal. The Court's decision to dismiss the appeal and related matters was based on the inadequacy of grounds and the undue hardship it would cause to the dealer. Consequently, Tax Appeal (Stamp) No.86 of 2017 and OJCA(Stamp) No. 88 of 2017 were also dismissed.