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TMI Blog2024 (5) TMI 664X X X X Extracts X X X X X X X X Extracts X X X X ..... decision appealed against, it stands to reason that the original order served on the petitioner during assessment is to be retained by him, as his copy, and only if the person aggrieved and wanting to object to the whole or part of the decision desires to file an appeal, such appeal is required to be accompanied by a certified copy of the decision. In the present case, it appears that there was no such intimation given to the Petitioner of the specific date when the certified copy would be ready, nor has the Petitioner given any intimation on or after 14.11.2018 (the date endorsed on the certified copy to the office file, when the copy was ready) as to when it was required to collect the certified copy. Clearly from the facts of the case, the Appellate Authority was duty bound to examine all these aspects of the matter and to approach the question of limitation with a broader perspective. Instead, without examining whether the petitioner was intimated the date of collection of the certified copy or not, the Appellate Authority has, in a cursory manner and without even adverting to the provision of Rule 33 of the VAT Rules or for that matter considered the circumstances which were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the Respondent No. 2. It is the Petitioner's case that in terms of Rule 33 (1) of the Goa Value Added Tax Rules, 2005 (VAT Rules), the memo of appeal challenging the assessment order is required to be accompanied by a certified copy of the order appealed against, for which reason the above application was made, but no intimation was given to the Petitioner as to the date when it was required to collect the certified copy or the date when such certified copy was ready. c). The Respondent No. 2 sent to the Petitioner a reminder to pay its dues by letter dated 13.08.2020. On receiving the reminder and since there was no communication from Respondent No. 2 with regard to the certified copy, the Petitioner sent a communication dated 04.09.2020 without prejudice to its rights to file a formal reply to the demand reminding the Respondent No. 2 to issue a certified copy or to treat this communication as a fresh application for a certified copy. A true copy of the assessment order was then furnished by the Respondent No. 2 to the Petitioner on 15.09.2020 and an appeal was presented to the Appellate Authority, the Respondent No. 1, on 22.09.2020 accompanied by an application for cond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... copy dated 26.04.2018 was in the file along with the certified copy dated 14.11.2018. This statement by the Petitioner that there was however no intimation to the Petitioner to collect the same is also not denied nor is any communication produced along with the affidavit to state that the Petitioner was in fact intimated of the date when certified copy was to be collected. The Respondents have raised a preliminary objection to the maintainability of the Petition contending that the impugned order dated 09.08.2021 is an appealable order in terms of Section 36 (1) of the Goa VAT Act and the Petitioner not having availed of the alternate and efficacious remedy of an appeal, the present Petition is not maintainable. The preliminary objections to the maintainability of this petition on grounds of availability of an alternate relief of appeal are therefore required to be decided first. SUBMISSIONS ON PRELIMINARY OBJECTIONS: 5. Ms Maria Correia, learned Additional Government Advocate, submits that an order passed under Sub-section 2 of Section 35 of the GST Act refusing to condone delay in filing the appeal as a consequence of which there is refusal to accept the appeal, amounts to a dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or amending the assessment or enhancing the assessment or levying tax and/or penalty or remanding the matter for fresh assessment or dismissing the appeal. The contention is that the decision contained in the order is one based upon reasons and is passed on the merits of the matter. Reliance was placed on a judgment of this Court in Sushila Singhania and Others vs. Bharat Hari Singhania Ors. reported in 2017 (4) Bom. C.R. 348 to contend that the word decision means the entire and final decision of the Court and not a part of the decision such as rejection only on a point of limitation. CONSIDERATION OF SUBMISSIONS ON PRELIMINARY OBJECTIONS: 7. In order to consider the rival submissions on whether the impugned order rejecting an application for condonation of delay under Sub-section 2 of Section 36 of the GST Act amounts to the appeal decision used in Sub-section 7 of Section 35 or the words the decision used in Sub-section 1 of Section 37, it would be apposite to refer to certain provisions of the GST Act. Section 29 of the Act deals with the process of assessment of tax under the Act. An assessment order passed under Sub-section 4 of Section 29 is appealable under Sub-section 1 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th powers to admit an appeal after the expiry of the limitation period of 60 days if it is satisfied that the appellant had sufficient reason for not filing the appeal within time specified under Sub-section 1. Note must be taken of the fact that the words used in Sub-section 7 of Section 35 and in Sub-section 1 of Section 36 are similar, that is to say what can be appealed against is not any order but the appeal is against the appeal decision or decision of the appellate authority . 9. Sub-section 2 of Section 35 empowers the appellate authority to accept an appeal beyond the prescribed limitation if the appellate authority is satisfied that the person who has filed the appeal has shown reasonable cause for not preferring the appeal within the time specified under Sub-section 1. Appeals under this provision are against all orders passed under the Act and the provision does not refer to decisions . On accepting an appeal by recording satisfaction that the reasons for preferring the appeal beyond limitation are proper, the Appellate Court would proceed to exercise jurisdiction under Sub-section 6 of Section 35, to consider the appeal, and afford the parties an opportunity of a heari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Sub-section 7 of Section 36. The very same words are contemplated in Sub-section 1 of Section 36 where an appeal would only lie against the decision of the appellate authority after being served with an order of this decision; Such a decision would be one which decides the legality of the assessment conducted by the Commissioner and must contain the reasons for accepting, amending, enhancing or rejecting the assessment, penalty or levy of tax. 12. Reference may also be made to the provisions of Rule 27 of the GST Rules under which the Commissioner makes an order of assessment of tax under Sub-rule 3 of Rule 27 against which an appeal would lie under Section 36 of the Act read with Rules 31, 32 and 33 of the GST Rules. Rule 31 prescribes the authority to whom the first and second appeal lies. Rule 33 prescribes the form of the memorandum of appeal and the manner of presenting the same, which necessitates that the memo of appeal shall be accompanied by a certified copy of the order appealed against. Rule 31 covers the filing of both, first and second appeal. 13. Rule 34 empowers the appellate authority under Section 35 of the Act, pending final decision of an appeal filed under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 26, the word decision being referred to as the order containing the reasoning for accepting or rejecting an order of assessment on its merits. In that view of the matter, the ratio laid down in Mela Ram (supra), being one on provisions which are schematically different from the ones contained in the Goa VAT Act, cannot be applied to the case in hand. 15. Chintels India Limited (supra) was a judgment rendered on the interpretation of Section 34 and Section 37 of the Arbitration Act holding that an appeal under Section 37 (1) (c) of the Arbitration Act would be maintainable against an order refusing to condone delay in filing an application under Section 34 to set aside an award. The reasoning adopted there was on the effect principle, where the effect of rejecting an application to condone delay amounted to rejection of the appeal on merits. One has to note the specific provisions of the Arbitration Act wherein Section 37 provides for an appeal against setting aside or refusing to set aside an arbitral award under Section 34. The words used in Section 34, whereby any order amounting to refusal to set aside an arbitral award, including on grounds of limitation would amount to an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the form of an order is appealable only under the conditions given in proviso to section 13 (1) viz. that the order/decision is appealable only on the grounds mentioned in Section 37 or Section 104 or Order XLIII of the CPC Whether the word decision which is found in Section 13 (1) of the Commercial Courts Act includes a decree or an order which has the effect of having finality or final adjudication of rights of parties? 19. Answering these issues, this Court has held as under:- 44] Apart from reasons which we have given hereinabove, and in addition to that while deciding the question as to whether decision includes judgment and decree , it will have to be considered whether the word decision has to be used in narrow sense or in a broad sense i.e. whether the word decision will have to be read only as a decree or wider meaning has to be given viz that of decree , judgment and order which conclusively decides rights of the parties. Though the Letters Patent Act is not applicable as it has been expressly excluded under sub-section (2), it will be necessary to briefly see how the word judgment has been interpreted by the Apex Court. The word judgment is narrowly treated under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch decision. There is not doubt that the decision in the context means the decision on the points for determination. That of course is the meaning of the word decision , but whether or not the word decision means the decision on one point or the decision of whole suit comprising of all the points in dispute between the parties must Inevitably depend upon the context, and the context is plainly inconsistent with the argument that the decision should mean the decision on a specific point. If the word decree in the first part of the relevant clause means not a part of the decree but the whole of the decree, then it would be reasonable to hold that the word decision must likewise mean the entire decision of the trial court and not a part of it. Similarly in para 9 of the said judgment, the Apex Court has observed as under: 9. The question as to the meaning of the word decision in the corresponding provision of the Code of 1882 (s. 596) was considered by the Privy Council in Rajah Tasadduq Rasul Khan v. Manik Chand [(1902 03) 30 IA 35]. The question which arose for the decision of the Privy Council was whether the appellate decree in that case was one of affirmance or not. The appellat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the learned Judge or the Court proceeds to make the decree. Mr. DeGruther appears to wish to give the Word decision the same meaning as the word judgment and he says that it is necessary that the Appellate Court should not only affirm the decree made by the Court below but should also affirm the grounds of fact upon which that judgment was passed. Their Lordships cannot come to that conclusion. They think that the natural, obvious, and prima facie meaning of the word decision is decision of the suit by the Court, and that that meaning should be given to it in the section. Similarly, the Apex Court in Diamond Sugar Mills Ltd. Anr. vs. State of Uttar Pradesh and Anr., has considered the meaning of the term decision and in para 28 it has observed as under: 28. It is true that when words and phrases previously interpreted by the courts are used by the Legislature in later enactment replacing the previous statute, there is a presumption that the Legislature intended to convey by their use the same meaning which the courts had already given to them. This presumption can however only be used as an aid to the interpretation of the later statute and should not be considered to be conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Commercial Courts Act as if it is a decree? No. [2] Whether the word decision means a decree? Yes [3] Whether a decision in the form of an order is appealable only under the conditions given in proviso to section 13 (1) viz. that the order/decision is appealable only on the grounds mentioned in Section 37 or Section 104 or Order WII of the CPC? Yes [4] Whether the word decision which is found in Section 13 (1) of the Commercial Courts Act includes a decree or an order which has the effect of having finality or final adjudication of rights of parties? No [5] Whether, the heading to Section 13 of the Commercial Courts Act governs Section 13 (1) i.e. whether the word decision is to be taken as a decree on account of the heading of the Section? Yes [6] Whether ratio of the judgment in Jet Airways (India) Ltd. (supra) is applicable to the facts of the present case and is a binding precedent with reference to the facts arising in the present case? Yes [7] Whether ratio of the judgment in the case of Paramjeet Singh Patheja (supra) which has been relied upon in the case of Jet Airways (India) Ltd. (supra) is applicable to the facts of the present case? Yes 20. The reasoning followed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the office of the Assistant Commissioner informing the Petitioners of the specific date when the certified copy was to be collected. Even reminders to that effect were not replied to after which, without prejudice, the petitioner applied for a fresh certified copy on 04.09.2020, since it was informed that the earlier application for certified copy could not be traced. He submitted that a certified copy was finally submitted on 15.09.2020 and within 9 days of receiving it, the appeal was filed on 24.09.2020. 23. It is further submitted by the learned Senior Counsel for the petitioner that inspection was taken of the file of the Commercial Tax Office to check whether the first certified copy application dated 26.04.2018 was in the file, and on inspection of the file on 23.09.2021, the original application for certified copy was very much in the file along with a certified copy of the assessment order bearing a date on which it was ready as 18.11.2018, though no intimation was given to the petitioner of the certified copy being ready. He submitted that these averments have been made in paragraph 6, 7 and 10 of the petition which have not been denied by the respondents in paragraph 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be entitled to deduction of time spent by the Authority to issue the certified copy, while reckoning the period of limitation. In the present case, it appears that there was no such intimation given to the Petitioner of the specific date when the certified copy would be ready, nor has the Petitioner given any intimation on or after 14.11.2018 (the date endorsed on the certified copy to the office file, when the copy was ready) as to when it was required to collect the certified copy. 26. It appears to be a practice in many Government offices that parties are not informed specifically the date when they are required to collect certified copies of documents and the parties are expected to make several trips to Government offices to inquire whether certified copies are ready or not. This attitude is reflected in the affidavit of Agnelo D'Souza, Assistant Commissioner of Commercial Tax who claims that certified copy was in fact ready on 14.11.2018 but expects the dealer to collect the same without being intimated by his office. In matters where limitations are prescribed by provisions of law, and where certified copies have been applied for, it would be more incumbent upon such aut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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