2024 (5) TMI 664 - HC - VAT and Sales Tax

Appellate Authority's refusal to condone delay in VAT appeal filing under Section 55 quashed for improper examination

Palette Hotels (India) Pvt. Ltd. Versus Deputy Commissioner of State Tax, Vasco da Gama Ward, Assistant Commissioner of State Tax, Vasco da Gama Ward.

The Bombay HC quashed the Appellate Authority's order refusing to condone delay in filing an appeal under Section 55 of the Goa VAT Act, 2005. The ... Maintainability of petition - alternate and efficacious remedy of an appeal - Refusal to admit an appeal filed under Section 55 of the Goa Value Added Tax Act, 2005 after rejecting the Petitioner's application for condonation of delay in filing the appeal - HELD THAT:- The procedure to file an appeal is provided in Rule 33 of the VAT Rules which requires the memorandum of appeal to be accompanied by a certified copy of the order appealed against, whether in the case of a first appeal or a second appeal before the Tribunal. Sub-Section 1 of Section 35 however states that the appeal may be filed to the Appellate Authority prescribed under the Act within 60 days from the receipt of order. Reading the provisions of the Act, providing for filing of an appeal and of Rule 33 which provides for the procedure for filing the appeal, which is to be accompanied by a of the 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 clearly set out in the application for condonation of delay dated 22.09.2020. Nothing prevented the Appellate Authority from enquiring into the circumstances in which no intimation was given to the Petitioner of the first certified copy and why such certified copy had not been issued to the Petitioner the first time and a different true copy had to be issued to him on 15.09.2022. The Appellate Authority has therefore failed to exercised jurisdiction vested in it by law and has wrongly passed the impugned order refusing to condone delay in filing the petitioner's appeal. The impugned order dated 09.08.2021 would have to be quashed and set aside, the delay in filing the appeal stands condoned for reasons stated above, and the application for condonation of delay dated 22.09.2020 stands allowed. Issues Involved:1. Maintainability of the Petition.2. Merits of the application for condonation of delay.Summary:Issue 1: Maintainability of the PetitionThe Respondents raised a preliminary objection to the maintainability of the Petition, contending that the impugned order dated 09.08.2021 is an appealable order u/s 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.Submissions on Preliminary Objections:Ms. Maria Correia, Additional Government Advocate, argued that an order passed u/s 35(2) refusing to condone delay in filing the appeal is a 'decision' within the meaning of Section 36(1) of the Act and is therefore appealable. She relied on the Supreme Court's judgments in *Mela Ram and Sons vs. Commissioner of Income Tax, Punjab* and *Chintels India Limited vs. Bhayana Builders Private Limited* to support her argument.In response, Senior Advocate A.F. Diniz for the Petitioner contended that the words 'appeal decision' and 'decision' in Sections 35(7) and 36(1) respectively, do not relate to an order of rejection of an application to condone delay. He relied on the judgment of this Court in *Sushila Singhania and Others vs. Bharat Hari Singhania & Ors.* to argue 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:The Court examined the provisions of the VAT Act, particularly Sections 29, 35, and 36, and concluded that an order rejecting an application for condonation of delay does not amount to a 'decision' on the appeal itself or a decision on the correctness of the assessment. Thus, such an order is not appealable under Section 36 of the Act. The Court distinguished the case from the judgments cited by the Respondents, noting that the VAT Act makes a clear distinction between 'orders' and 'decisions.'Issue 2: Merits of the Application for Condonation of DelayThe Petitioner challenged the order dated 09.08.2021 passed by the Deputy Commissioner of State Tax, Vasco-da-Gama Ward, which refused to admit an appeal filed u/s 55 of the VAT Act after rejecting the Petitioner's application for condonation of delay.Submissions on Merits:Senior Advocate A.F. Diniz argued that the Petitioner had applied for a certified copy of the assessment order on 26.04.2018 but received no communication from the Respondent regarding the date for collection of the certified copy. The Petitioner sent reminders and eventually received the certified copy on 15.09.2020, filing the appeal within 9 days thereafter. The Respondents did not deny these facts in their affidavit.Ms. Maria Correia for the Respondents contended that the appeal could be filed within limitation even with the original copy, and the Appellate Authority had no jurisdiction to condone delay beyond one year from the date of receipt of the order by the Petitioner.Consideration of Submissions on Merits:The Court found that the Petitioner was not informed of the date when the certified copy would be ready, and the Appellate Authority failed to consider this aspect. The Court held that the Appellate Authority should have approached the question of limitation with a broader perspective and examined the circumstances set out in the application for condonation of delay. The impugned order was quashed, and the delay in filing the appeal was condoned.Conclusions:1. The order dated 09.08.2021 is not a 'decision' for the purpose of Sections 35(7) and 36(1) and is therefore not amenable to challenge in an appeal under Section 36 of the VAT Act.2. The impugned order dated 09.08.2021 refusing to condone delay in filing the appeal is quashed and set aside, and the delay in filing the appeal stands condoned.3. The Assistant Commissioner of Commercial Taxes, Vasco-da-Gama Ward, shall accept the appeal and proceed to decide it within four months.Rule is made absolute in the above terms. No order as to costs.