2023 (8) TMI 53 - HC - VAT and Sales Tax

Refusing to condone the delay in filing appeal under section 35 of the Goa Value Added Tax, 2005 - HELD THAT - A reading of section 35 would go to show that in ordinary course the petitioner should have preferred the appeal within one year from the date of receipt of the order i.e. one year from 11.06.2020 if there is a reasonable cause. The appeal therefore ought to have been filed in ordinary course, on or before 11.06.2021. This period of one year expired during the period prescribed i.e. 11.06.2020 to 28.02.2022. A reference to the various orders passed by the Supreme Court regarding the extension of limitation during the Covid-19 pandemic period is necessary. A reading of the order passed by the Supreme Court in the case of Cognizance for Extension of Limitation passed on March 2020 2020 (5) TMI 418 - SC ORDER , reveals that the Supreme Court took Suo Motu cognizance of the difficulties that might be faced by the litigants in filing petitions/applications/ suits/appeals/all other quasi proceedings within the period of limitation prescribed under the general law of limitation or under any special laws (both Central and/or State) due to the outbreak of the COVID-19 pandemic. On 23.03.2020, the Supreme Court directed extension of the period of limitation in all proceedings before Courts/Tribunals including the Supreme Court w.e.f. 15.03.2020 till further orders. On 08.03.2021, the order dated 23.03.2020 was brought to an end, permitting the relaxation of period of limitation between 15.03.2020 and 14.03.2021. While doing so, it was made clear that the period of limitation would start from 15.03.2021. Thereafter, due to a second surge in COVID-19 cases, the Supreme Court Advocates on Record Association (SCAORA) 2022 (1) TMI 385 - SC ORDER intervened in the Suo Motu proceedings by filing Miscellaneous Application No. 665 of 2021 seeking restoration of the order dated 23.03.2020 relaxing limitation. The Supreme Court extended the period of limitation in all proceedings before the Courts/Tribunals w.e.f 15.03.2020 till 02.10.2021. In the present case, the respondent no. 2 was of the opinion that as the appeal was filed on 17.08.2022, the same is beyond the period of 90 days as per the order dated 10.01.2022 passed by the Hon'ble Supreme Court. It pertinent to note that the Supreme Court restored the order dated 23.03.2020 and directed that in continuation of the subsequent orders dated 23.03.2020, 27.04.2021 and 23.09.2021, the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purpose of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi judicial proceedings - The assessment order dated 04.06.2020 impugned in appeal before the respondent no. 2, was passed during the period 15.03.2020 till 28.02.2022. The said period will have to be excluded for the purpose of limitation - there are no hesitation in coming to the conclusion that the starting point of limitation for the purpose of filing an appeal under section 35 of the VAT Act against the assessment order dated 04.06.2020, which was passed during the period between 15.03.2020 till 28.02.2022 will have to be computed from 01.03.2022. The period from 15.03.2020 till 28.02.2022 shall stand excluded for the purpose of limitation. The respondent no. 2 was not justified in proceeding on the footing that the appeal should have been filed within a period of 90 days from 01.03.2022. The appeal filed by the petitioner before the respondent no. 2 was accompanied with the proof of payment of the amount as required under section 35 of the VAT Act. Hence, the writ petition is allowed. The impugned order is set aside. The matter is remitted to the Tribunal. The application for condonation of delay be considered afresh by the Tribunal in the light of the provisions of subsection (2) of section 35 of the VAT Act on its own merits and in accordance with law.

Summary

Issues Involved:
1. Condonation of delay in filing an appeal under Section 35 of the Goa Value Added Tax Act, 2005.
2. Applicability of the Supreme Court's order on the extension of limitation due to the Covid-19 pandemic.

Summary:

Issue 1: Condonation of Delay in Filing an Appeal
The petitioner, a dealer registered under the Goa Value Added Tax Act, 2005, challenged an order dated 31.03.2023 by the Additional Commissioner of Commercial Taxes, which refused to condone the delay in filing an appeal under Section 35 of the VAT Act. The petitioner filed the appeal on 17.08.2022 against an assessment order dated 04.06.2020, served on 11.06.2020. The petitioner also submitted proof of payment as required under Section 35 of the VAT Act.

Issue 2: Applicability of the Supreme Court's Order on Extension of Limitation
The respondent argued that the appeal was time-barred and not filed within the 90-day extension period provided by the Supreme Court due to the Covid-19 pandemic. The Supreme Court, in its order dated 10.01.2022 in Cognizance for Extension of Limitation, extended the limitation period from 15.03.2020 to 28.02.2022. The respondent dismissed the application for condonation of delay, stating that the appeal was filed beyond the extended period.

Court's Analysis and Conclusion:
The court noted that the assessment order was served during the period from 15.03.2020 to 28.02.2022, and thus, the limitation period should be computed from 01.03.2022. The court emphasized that the Supreme Court's orders aimed to alleviate hardships faced by litigants during the pandemic and should be interpreted broadly to serve justice. The court referred to the Supreme Court's observations in Prakash Corporates vs. Dee Vee Projects Limited, highlighting the necessity to exclude the period affected by the pandemic from the limitation period.

The court concluded that the respondent's interpretation was incorrect and that the appeal should be considered timely if filed within the extended period prescribed by the Supreme Court. The writ petition was allowed, the impugned order was set aside, and the matter was remitted to the Tribunal for fresh consideration of the application for condonation of delay under Section 35(2) of the VAT Act on its own merits and in accordance with the law. No order as to costs was made.