2020 (4) TMI 336 - HC - VAT and Sales Tax

Maintainability of appeal - appeal was dismissed on the ground of time limitation - contention raised before this Court is that the Assessee was not served with the impugned assessment order in time and he applied for a certified copy and upon receipt of the same, he filed the appeal - HELD THAT - The learned Appellate Authorities ought to have decided the appeal on merits. Appeal is a valuable statutory right of the Assessee and the power of the Appellate Authority are co-extensive with that of the Assessing Authority and being fact finding authorities, the Appellate Authorities should not have shirked their responsibilities and decided the case on merits. The present writ petition is allowed by setting aside the impugned orders passed by the Authorities below and restore the matter to the First Appellate Authority to decide the appeal afresh in accordance with law, after affording reasonable opportunity to both the parties, within a period of six months from today - petition allowed by way of remand.

Summary

Issues:
Appeal dismissed as time-barred for Assessment Year 1993-94.

Analysis:
The Assessee's grievance in the writ petition was that the appeal was dismissed as time-barred for the Assessment Year 1993-94. The contention was that the Assessee was not served with the assessment order in time, and upon receiving a certified copy, filed the appeal. The First Appellate Authority rejected the appeal as time-barred, emphasizing that the Assessee had refused to receive the order, leading to a delay in payment of admitted tax and filing of the appeal. The Tribunal supported the decision, stating that the service by affixture was proper, considering the Assessee's refusal to receive the notices and orders despite existing in the same premises. The Tribunal concluded that the delay in filing the appeal and paying the admitted tax could not be condoned, thus dismissing the appeal.

The Appellate Assistant Commissioner dismissed the appeal, refusing to condone the delay of 137 days in filing the appeal for the Assessment Year 1993-94. The Appellant's arguments against the service by affixture were examined, with the Additional State Representative asserting that the service was proper as the Appellant had to receive the notice and order. The Appellant's refusal to accept the notices and orders, despite multiple attempts and intimation, led to the conclusion that the service by affixture was appropriate. The Appellate Authority found that the Appellant had refused to receive the notice and order, thus justifying the service by affixture and rejecting the appeal.

The High Court opined that the Appellate Authorities should have decided the appeal on merits, emphasizing that an appeal is a valuable statutory right of the Assessee. The Court noted that the power of the Appellate Authority is co-extensive with that of the Assessing Authority, and as fact-finding authorities, they should not avoid their responsibilities. The Court allowed the writ petition, setting aside the impugned orders and restoring the matter to the First Appellate Authority to decide the appeal afresh within six months, after providing a reasonable opportunity to both parties. The parties were directed to appear before the First Appellate Authority on a specified date.

In conclusion, the High Court disposed of the Writ Petition with the direction to reexamine the appeal on merits, emphasizing the importance of upholding the Assessee's statutory right to appeal and ensuring a fair opportunity for both parties in the proceedings.