Condonation of Delay, Service Tax

[Vasudev Mehta]

respected Sir,

The Commissioner (Appeals) rejected the appeal on the ground that no condonation application was filed, however COD was filed but was not considered by the Commissioner (Appeals). Hence, the Appellants applied for rectification of order for which the commissioner (Appeals) gave hearing but did not dispose it off. Hence, Appellants approached CESTAT but there is a delay of 20 days. Will CESTAT condone the delay since we have received hearing. Is there any case law for the same?

Posts / Replies

[KASTURI SETHI]

Yes but you must solid ground for delay. There is a number of  case laws on this issue. A few are as under :-

2024 (7) TMI 741 - CALCUTTA HIGH COURT - ACME PAINTS AND RESIN PVT. LTD. Versus DEPUTY COMMISSIONER OF REVENUE, STATE TAX

 

[KASTURI SETHI]

SUJIT DAS Versus SENIOR JOINT COMMISSIONER OF REVENUE, STATE TAX, JALPAIGURI CIRCLE - 2024 (5) TMI 1400 - CALCUTTA HIGH COURT

2024 (6) TMI 666 - CALCUTTA HIGH COURT - PARTHA PRATIM DASGUPTA Versus JOINT COMMISSIONER OF STATE TAX

[Vasudev Mehta]

Respected sir,

There is a delay in filing of 20 days before cestat since the assesse was waiting for disposal of rectification application by commissioner (appeals). Are there any case law that waiting for disposal of rectification application is sufficient cause for condoning delay?

[KASTURI SETHI]

 O.K. I shall try to trace out specific case law and, if comes by, I shall  post here.

[Vasudev Mehta]

Thank You Sir

[KASTURI SETHI]

Dear Querist,

                  You can take shelter of the following judgement :- 

2024 (12) TMI 140 - MADRAS HIGH COURT M/S. SPK AND CO, REPRESENTED BY ITS JOINT MANAGING PARTNER VERSUS THE STATE TAX OFFICER, MUTHUKULATHUR Challenge to order of assessment and the order of rectification passed by the respondent - vague SCN - calculation of period of limitation from the date when the original assessment order was passed - HELD THAT:- After assessment order has been made, Section 161 of the GST Act provides for an application to be made for rectification. Such rectification can be disposed either in favour of the assessee or against him. If any rectification is made as prayed for, the same would get merged into the original order. Just because the rectification application has been rejected, the period of limitation to challenge the original assessment order cannot be said to begin from the date on which the original order was passed, it would only count from the date on which the order of rectification has been passed. In the present case, the original order of assessment was made on 07.08.2024 and the order in rectification was made on 12.11.2024. Therefore, the period of limitation for challenging the order of assessment dated 07.08.2024 shall start ticking from the date of rejection of the rectification application i.e., from 12.11.2024. It is made clear that when the appeal is filed by the assessee as against the original order of assessment, the period of limitation shall be calculated from the date on which the rectification had been dismissed. Petition disposed off.