2019 (5) TMI 646 - HC - VAT and Sales Tax

Delay in filing appeal or not? - Whether there was infact a delay in filing appeal before the first appellate authority when the appellant filed application for rectification but the same was not entertained and appeal had to be filed without any copy of order? HELD THAT - The appellant had moved the said rectification application followed by the applications dated 14.10.2013 and 16.12.2013 only to cover up the delay in filing the first appeal and to create a ground for condonation of delay in filing the appeal - As per Section 19 of the Act, the rectification of an order can be done if there is clerical or arithmetical mistake apparent from the record of the case. By moving the rectification applications, the appellant sought benefit of ITC claim for higher amount than that allowed by the Assessing Authority under the Act. Further, the rectification could be done by the Assessing Authority within two years from the date of supply of copy of the order. The copy of the assessment order dated 4.2.2011 was supplied to the appellant on 11.4.2011 and, therefore, the rectification order could be passed upto 11.4.2013 only. However, the appellant filed the first appeal on 27.12.2013 for which no explanation was furnished by it. Since no explanation muchless satisfactory explanation was furnished, the Tribunal has rightly dismissed the appeal. Appeal dismissed - decided against appellant.

Summary

Issues:
- Delay in filing appeal before the first appellate authority
- Fatal delay leading to dismissal of appeal
- Denial of input tax benefit due to non-production of forms

Analysis:
1. Delay in filing appeal before the first appellate authority:
The appellant filed an appeal under the 1956 Act within the limitation period but failed to file the first appeal under the Act against the same assessment order. The appellant's rectification applications were seen as an attempt to cover up the delay in filing the first appeal. The rectification sought a higher amount of Input Tax Credit (ITC) than allowed by the Assessing Authority, which was not a clerical or arithmetical mistake apparent from the record. The appellant received the assessment order on 11.4.2011, and the rectification order could have been passed until 11.4.2013. However, the appellant filed the first appeal on 27.12.2013 without providing any satisfactory explanation for the delay. The Tribunal rightfully dismissed the appeal due to the lack of explanation for the delay.

2. Fatal delay leading to dismissal of appeal:
The appellant's failure to file the first appeal under the Act in a timely manner, despite filing an appeal under the 1956 Act within the limitation period, led to the dismissal of the appeal. The rectification applications were viewed as an attempt to create grounds for condonation of delay in filing the appeal. The Tribunal correctly concluded that the delay was not adequately explained, resulting in the dismissal of the appeal.

3. Denial of input tax benefit due to non-production of forms:
The appellant's additional demand under the 1956 Act was primarily due to the absence of declaration in Form C-4 and Form C. The Assessing Authority disallowed input tax for the absence of declaration in Form C-4. The appellant filed rectification applications to rectify the assessment order, but these were not adjudicated upon. The Tribunal rejected the appeal, emphasizing that the rectification applications did not justify the delay in filing the appeal. The denial of input tax benefit was a crucial aspect of the case, but the failure to provide a valid explanation for the delay in filing the appeal led to the dismissal of the case.

In conclusion, the High Court found no merit in the appeal, as the appellant failed to explain the delay in filing the first appeal under the Act. The Tribunal's decision to dismiss the appeal was upheld, as no substantial question of law was identified. The appeal was subsequently dismissed, and the application for condonation of delay was disposed of accordingly.