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TMI Blog2022 (3) TMI 185X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant assessee finds that the possession and key of the aforesaid property was handed over to the authorized person of the assessee Company after 30.11.2018 - Further, it transpires from the record that as soon as the assessee Company became aware about the order dated 12.10.2015, necessary steps were undertaken by the assessee Company by filing Second Appeal before the Tribunal on 27.11.2018, whereby the appellate assessee had also complied with the provisions of pre-deposit by making payment of amount of ₹ 20 Lakh before the Tribunal. This Court finds no reason to doubt the bona fide of the assessee Company in filing the Second Appeal before the Tribunal after delay. Thus, no presumption can be attached to deliberate inaction of the assessee Company in filing the Second Appeals. There exist sufficient cause to condone the delay - the delay which has occurred in filing the Second Appeal before the Tribunal can be condoned and the appellate assessee should be given an opportunity to submit its case on merits before the Tribunal which will meet with the ends of justice. The delay of approximately 3 years and 7 months which has occurred in filing the Second Appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment was also directed for A.Y. 2009-10, 2011-12 and 2013-14. Being aggrieved with the aforesaid assessment order, the appellant assessee preferred First Appeal under Section 73 of the Act through its Consultant at Bharuch. 3.3 The appeal of the appellant assessee Company came to be summarily dismissed on the ground of inability of the Company to pay requisite pre-deposit amount, which is otherwise required to be furnished at the stage of admission of appeal. Thus, vide order dated 12.10.2015, the aforesaid appeal of the appellant Company came to be summarily dismissed. 3.4 It is the case of the appellant Company that they were notaware about the aforesaid ex parte order passed by the First Appellate Authority nor they were informed about such order being passed through Consultant based at Bharuch. 3.5 The appellant assessee has tendered explanation that somewhere in the year 2018, the appellant assessee was served with the demand notice against the outstanding dues determined pursuant to the assessment order passed in respect of the A.Y. 2010-11 to 2013-14. Such demand notice was served upon the appellant assessee on the address at Mumbai office. It is at that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court by filing present Tax Appeals. 4. Mr. Hiren Trivedi, the learned advocate has appeared on behalf of the appellant assessee and Mr. Utkarsh Sharma, learned AGP has appeared on behalf of the respondent Authority. 5. Mr. Trivedi, the learned counsel for the appellant assessee has placed on record the various documents, which includes copy of the order of Collector dated 24.12.2015 as well as copy of the notice of demand dated 05.09.2018 issued by the State Tax Officer (Unit-56), Ankleshwar, and has asserted that at the relevant point of time, the aforesaid order / demand notice has in fact been served upon the appellant assessee at their registered office at Mumbai. Mr. Trivedi, the learned counsel has further drawn attention of this Court to the application dated 25.07.2019 in support of his argument that in fact the payment of pre-deposit of ₹ 20 Lakh have been made by the appellant assessee and challan to that extent has also been issued in favour of the appellant assessee and has thereby submitted that the First Appellate Authority as well as the Tribunal ought to have taken liberal approach in condoning the delay as the same was not on account of any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al. The learned AGP has by relying upon the order under challenge submitted that the Tribunal has committed no error of fact or law while passing the impugned order. It was further submitted by the learned AGP that the assessee Company was expected to scrupulously followed the litigation and cannot shift the onus on its Consultant. In fact, the appellant has acted negligently by not following status of litigation considering the dates of evidence as well as contents of application seeking condonation of delay as well as the letter dated 25.07.2019, requesting the Deputy Commissioner of Commercial Tax (Appeal 6), Vadodara and has submitted that it can safely be presumed that the appellant assessee had in fact, being served with a copy of the order under challenge and in fact the copy though being served was not available with the assessee Company and therefore, applied for duplicate copy. Learned AGP has further relied upon Section 73(3) of the Act and has submitted that from the bare reading of the aforesaid provision and the materials available on record, more particularly, the application dated 25.07.2019 suggests that it was the appellant assessee who was at fault in not f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the notice of demand dated 05.09.2018, registered address of the assessee Company seems to be based at Mumbai. In such circumstances, this Court finds force in the submissions of the learned counsel Mr. Trivedi appearing for the appellant assessee about non-service of the order under challenge dated 12.10.2015 upon the assessee Company. Further, it transpires from the record that as soon as the assessee Company became aware about the order dated 12.10.2015, necessary steps were undertaken by the assessee Company by filing Second Appeal before the Tribunal on 27.11.2018, whereby the appellate assessee had also complied with the provisions of pre-deposit by making payment of amount of ₹ 20 Lakh before the Tribunal. In this set of facts of this case, this Court finds no reason to doubt the bona fide of the assessee Company in filing the Second Appeal before the Tribunal after delay. Thus, no presumption can be attached to deliberate inaction of the assessee Company in filing the Second Appeals. There exist sufficient cause to condone the delay. 10. In the facts and circumstances of the case, we are of the opinion that the delay which has occurred in filing the Second ..... X X X X Extracts X X X X X X X X Extracts X X X X
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