2013 (10) TMI 1276 - HC - VAT and Sales Tax

Rejection of application to set aside ex parte order - Petitioner could not appear in previous hearing due to ill health - Authority rejected case as time barred - Held that - impugned order passed by the appellate authority cannot be sustained. Admittedly, the petitioner s appeals were dismissed vide orders for want of prosecution - It was necessary for the appellate authority to have decided the said applications filed under Rule 61 (4) of the VAT Rules 2006, on merits. However the appellate authority has wrongly applied the time limit fixed under Section 46 (8A) of the VAT Act for deciding the appeals. In our considered view, the time limit fixed under Section 46 (8A) of the VAT Act, will not override or curtail the right of the appellant to invoke provisions of readmission/rehearing of the appeal which suffered dismissal for want of prosecution under Rule 61 (4) of the VAT Rules, 2006. On invocation of the provision of Rule 61 (4) the appellate authority is duty bound to consider the prayer made in it irrespective of the expiry of time fixed under Section 46 (8A) for deciding the appeal as the both the provisions operate in different spheres. The view taken by the appellate authority if allowed to stand, would render provisions of Rule 61 (4) of the VAT Rules, 2006, to be redundant, as in the cases when the appeal is dismissed for want of prosecution just before expiry of 12 months, the restoration application which will naturally be filed after 12 months would not become maintainable, which in our considered view cannot be the intention of the legislature - Decided in favour of assessee.

Issues:
1. Denial of time to file F-Forms in assessment under Central Sales Tax Act and Madhya Pradesh Value Added Tax Act.
2. Dismissal of appeals for want of prosecution due to Counsel's ailment.
3. Rejection of applications for readmission/rehearing of appeals under Rule 61 (4) of the VAT Rules 2006.
4. Interpretation of provisions of Rule 61 (4) of the VAT Rules 2006 and Section 46 (8A) of the VAT Act.
5. Legality of the appellate authority's decision to reject the applications for readmission/rehearing.

Analysis:
1. The petitioner, a Public Limited Company, faced denial of time to file F-Forms in assessments under the Central Sales Tax Act and the Madhya Pradesh Value Added Tax Act. The petitioner filed appeals under Section 46 of the VAT Act against these assessment orders.

2. The appeals were dismissed for want of prosecution as the petitioner's Counsel could not attend the hearing due to illness. The petitioner, unaware of the dismissal, later tried to follow up on the status of the appeals but faced difficulties in obtaining information about the files' whereabouts.

3. Subsequently, the petitioner submitted applications for readmission/rehearing of the appeals under Rule 61 (4) of the VAT Rules 2006, citing the Counsel's ill health as the reason for non-appearance. However, the appellate authority rejected these applications without a hearing, citing the expiry of the time limit under Section 46 (8A) of the VAT Act.

4. The petitioner argued that the appellate authority erred in not considering Rule 61 (4) of the VAT Rules correctly, emphasizing that the time limit under Section 46 (8A) pertains to deciding an appeal, while Rule 61 (4) allows for readmission/rehearing of dismissed appeals.

5. The High Court held that the appellate authority's rejection of the applications solely based on the time limit under Section 46 (8A) was incorrect. The Court emphasized that Rule 61 (4) provides a separate avenue for readmission/rehearing, distinct from the time limit for deciding appeals under the VAT Act. The Court ruled in favor of the petitioner, setting aside the appellate authority's order and remanding the matter for a decision on the readmission/rehearing applications without considering the expired time limit under Section 46 (8A).

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