High Court Overturns Tribunal's Dismissal Due to Delay. Burden of Proof Shifted. Lack of Evidence Raises Doubts.

The High Court set aside the Tribunal's orders dismissing the appeal due to delay in filing. The appellant's contention of non-receipt of the order shifted the burden to the respondent, who failed to prove delivery. The prescribed mode of service was not followed, and lack of evidence of dispatch raised doubts. With the respondent unable to locate documents, the matter was remanded for a hearing on the appeal's merits. The High Court directed the Tribunal to proceed with the hearing, revoked the cost order, and closed pending applications.

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Issues involved:
Condonation of delay in filing appeal, sufficiency of cause for delay, failure to establish delivery of order, mode of service prescribed by law, response under the Right to Information Act, remand to Tribunal for hearing on merits.

Analysis:
The appeal in question was filed against the final order of the Value Added Tax Appellate Tribunal, which was dismissed primarily due to being filed after the prescribed period of limitation had expired without sufficient cause for delay. The Tribunal's decision was based on the lack of mention in the affidavit that the order had not been received by the appellant's Chartered Accountant (CA) or partner. However, the appellant contended that the delay application did specify non-receipt of the order, shifting the burden to the respondent to prove service. The respondent failed to provide evidence of delivery, leading to doubts about the diligence of the CA.

The respondent argued that since the affidavits did not explicitly state non-receipt of the order, they were not obligated to prove delivery. The court noted that the practice of instructing CAs to collect orders was not the prescribed mode of service under the DVAT Rules, which required service via registered post. The appellant also referenced departmental orders suggesting service through registered post only.

Upon return with instructions, the respondent could not locate documents showing dispatch of the order. The appellant presented a response received under the Right to Information Act, indicating a lack of dispatch details for the order in question. Consequently, the respondent expressed no objection to remanding the matter to the Tribunal for a hearing on the appeal's merits.

In light of these developments, the High Court set aside the Tribunal's orders, directing a remand for a hearing on the appeal's merits. The direction for the appellant to pay costs was also revoked. The Tribunal was instructed to proceed with hearing and disposing of the appeal on its merits, effectively closing the pending applications.

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