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TMI Blog2013 (8) TMI 1164X X X X Extracts X X X X X X X X Extracts X X X X ..... ice by affixation of notice would amount to a valid service under the Gujarat Sales Tax Act, 1969? 2. Shri Jaimin Gandhi, learned AGP waives service of notice of admission on behalf of the opponent. 3. In the facts and circumstances of the case and with the consent of the learned advocates appearing on behalf of the respective parties, the present application is taken up for final hearing today. 4. The present Tax Appeal has been preferred by the appellant-assessee challenging the impugned judgment and order passed by the Gujarat Value Added Tax Tribunal (for short the tribunal ) dated 22/02/2013 in Second Appeal No. 1057/2012 by which the tribunal has dismissed the said appeal confirming the order passed by the Deputy Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 9 months in preferring the appeal. The appellant submitted the delay condonation application submitting that since 1994 the business is closed as GIDC has already taken over possession of the oil mills. The sole proprietor then shifted to USA and settled there since 19/11/1995 and thereafter they came to know about the proceedings only when they returned. It was submitted that nobody was aware of the aforesaid assessment proceedings and, therefore, it was requested to condone the delay. 5.2. Vide order dated 04/10/2012 the first appellate authority i.e. the Deputy Commercial Tax Commissioner, Appeal 3, Gandhinagar dismissed the application for condonation of delay and consequently dismissed the appeal on the ground of limitation. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rially erred in not properly appreciating the fact that there was no deliberate delay on the part of the appellant in preferring the appeal belatedly. It is submitted that the tribunal has not properly appreciated that by not preferring the appeal within the period of limitation, the appellant was not going to be benefited at all. 7.1. It is further submitted by Ms. Vyas, learned advocate appearing on behalf of the appellant that the tribunal has not appreciated the fact that the factory was closed since 1994 and the possession of the oil mill was taken over by GIDC in the year 1997 and since 1995 the sole proprietor i.e. the appellant had settled in USA. It is submitted that the tribunal has not properly appreciated the fact that in vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeal and confirming the order passed by the first appellate authority dismissing the appeal on the ground of limitation. It is submitted that when it was found that between 2000 and till the appeal was preferred, the proprietor had come to India on number of occasions, at that time he ought to have verified and/or known the proceedings. It is submitted that as such for the Assessment Year 1993-94 the proceedings were already initiated prior to 1994 and, therefore, as such the proprietor was aware of the assessment proceedings and, therefore, as and when he visited India he ought to have verified and/or known the process of the assessment proceedings. It is submitted that service of notice with respect to the assessment by affixing on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il mill/factory premises was taken over by GIDC in the year 1997. As stated hereinabove, thereafter the assessment proceedings for the Assessment Year 1993-94 commenced in the year 2000 and the show cause notice with respect to the assessment came to be affixed on the factory premises. It is true that between 1995 till filing of the appeal the proprietor of the appellant might have visited India on number of occasions. However, there might not had any reason and/or occasion for the proprietor to go to the factory premises, which was already sealed in the year 1993-94 and possession of which was taken over by GIDC in the year 1997. In the year 2011 the appellant came to know about the order of assessment and immediately the appeal has been p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Tax, Appeal 3, Gandhinagar in not condoning the delay in preferring the appeal against the order of assessment with respect to the Assessment Year 1993-94 are hereby quashed and set aside and the delay caused in preferring the appeal before the first appellate authority i.e. Deputy Commissioner of Commercial Tax against the order of assessment with respect to the Assessment Year 1993-94 is hereby quashed and set aside and the first appellate authority is directed entertain the appeal on condition that the appellant shall pay the cost to the Department, which is quantified at Rs.10,000/- to be paid by Demand Draft within a period of three weeks from today and on such deposit the first appellate authority to entertain the said appeal and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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