2019 (11) TMI 1278 - HC - VAT and Sales Tax

Condonation of delay in filing appeal - Time limitation - maintainability of appeal - allegation that appeal was instituted beyond the period of one year from the date of the receipt of the impugned order - HELD THAT - The petitioner, in this case, has admitted that the intimation with regard to the order was received by it on 22/05/2012. On the same date, certified copy was applied for and such certified copy was delivered on 24/05/2012. The appeal has been filed on 26/04/2013 i.e. within the period of one year from the date of receipt of the order by the petitioner. Accordingly, the Appellate Authority was duty bound to consider the cause shown by the petitioner and to determine whether the same constitutes sufficient cause. The matter was required to be remanded in order to enable the Appellate Authority to appreciate the cause shown - However, we find that the petitioner has stated that its old consultant was not keeping good health and suffering from heart ailment. The consultant, in fact, underwent bypass surgery as well. Accordingly, the papers were handed over to another consultant. However, this consultant also fell sick and virtually lost his eyesight due to diabetic retinopathy. According to us, in the peculiar facts of the present case, this constitutes sufficient cause for non instituting the appeal within the prescribed period. It is true that the petitioner, should have acted with little greater diligence. Therefore, whilst condoning the delay, the petitioner will have to be put to terms. Revision petition allowed.

Summary

Issues:
Challenge to judgment and order dated 25/03/2019 by Administrative Tribunal in Value Added Tax Appeal No.4/2018; Interpretation of Section 35 of the Value Added Tax, 2005 regarding appeal timelines and condonation of delay.

Issue 1: Challenge to Administrative Tribunal's Judgment
The Tax Revision Application challenged the Administrative Tribunal's judgment dated 25/03/2019, which held that the appeal filed beyond one year from the receipt of the impugned order dated 31/03/2012 by the Commercial Tax Officer was time-barred and did not allow for condonation of delay.

Analysis: The Tribunal's decision was based on Section 35 of the Value Added Tax, 2005, which stipulates a sixty-day timeline for filing an appeal, extendable to one year if reasonable cause is shown. The petitioner argued that since the appeal was filed within one year of receiving the order, the delay should have been condoned. The petitioner relied on the Supreme Court's decision in Benarsi Krishna Committee v. Karmyogi Shelters Pvt. Ltd. (2012) 9 SCC 496, emphasizing that service on a representative does not count towards the limitation period.

Issue 2: Interpretation of Service and Timelines
The case involved determining whether the person served with the order was the authorized representative or merely a tax consultant of the petitioner, impacting the calculation of the appeal timeline. The petitioner claimed that the person served was a consultant, not the authorized representative, and cited the Benarsi Krishna Committee case to support this argument.

Analysis: The Court acknowledged the lack of clarity in the application for condonation of delay but found no reason to doubt that the person served was a consultant, not the authorized representative. Citing the Benarsi Krishna Committee case, the Court held that the actual party, not the agent, is crucial for determining timelines. The petitioner received intimation of the order on 22/05/2012, applied for a certified copy on the same day, and filed the appeal on 26/04/2013, within one year of receiving the order.

Issue 3: Condonation of Delay
The Court considered the reasons for the delay in filing the appeal, including the ill health of the petitioner's consultants, and assessed whether sufficient cause existed to condone the delay.

Analysis: The Court found the health issues of the consultants constituted sufficient cause for the delay in filing the appeal. While acknowledging the need for greater diligence from the petitioner, the Court ordered payment of the demanded amount, with credit for the deposited sum, and imposed costs to be paid within four weeks to allow condonation of delay.

In conclusion, the Court allowed the revision petition on the condition of timely payments, failing which the petition would be dismissed. The judgment emphasized the importance of diligence in legal proceedings and the need to establish sufficient cause for condoning delays in filing appeals.