TaxTMI 
TaxTMI 
2024 (5) TMI 664
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....n of the Petition, as are seen from the record, are as under:- a). For the Assessment Year 2014-15, an assessment order came to be passed against the Petitioner in terms of Section 29 of the VAT Act by the appropriate Assessing Authority, Vasco Ward on 13.03.2018 assessing the Petitioner to tax of Rs. 13,61,192/- and penalty of Rs. 1,200/- with interest for delay in payment of Rs. 7,35,043/-. Along with the assessment order a demand notice of the same date was raised on the Petitioner, which the Revenue, Respondent No. 2 herein claims it served on the Petitioner on the same date. b). The Petitioner claims that no such order of assessment was served on that day, for which reason it applied for certified copy of the order vide its letter dated 26.04.2018 before 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 th....
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....-Gama Ward, the Respondents claimed that the Petitioner had received the original assessment order and demand notice on 31.03.2018 and further states that though an application for certified copy was inwarded by the Petitioner on 24.05.2018, the certified copy was in fact ready on 14.11.2018 at the office of Respondent No. 2 but it could not be ascertained whether the Petitioner had collected the copy. There is no denial however to the fact that the Petitioner was never informed by any communication from the Respondent No. 2 that the certified copy was in fact ready or the date when it was to be collected. There is no denial to the specific averment made by the Petitioner in paragraph 10 of the Petition that on inspection of the file on 23.09.2021, the Petitioner's original application for a certified 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 ....
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....herein would amount to rejection of the appeal, even though the order did not enter into the merits of the assessment. 6. In reply, learned Senior Advocate A.F. Diniz for the Petitioner contends that the words deployed in Sub-section 7 of Section 35 and in Sub-section 1 of Section 36 are "appeal decision" and "decision" which do not relate to an order of rejection of an application to condone delay under Sub-section 2 of Section 35; It was submitted that the word "decision" denotes something different from an order in its plain sense, since in Sub- section 7 of Section 35, the word "decision" relates to a decision on the appeal on the merits of the assessment, and the reasons" to be set forth in the decision, as referred in this provision relate to the various acts stated in Sub-section 6 i.e. allowing the appeal in whole or part, 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 Singha....
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....mencement, failing which, such appeal stand abated." (5) The appellant shall serve a copy of the appeal memo to the authority against whose order the appeal is filed. (6) After considering the appeal and after affording an opportunity of hearing, the Appellate Authority may allow it in whole or part and amend the assessment or remand it for fresh disposal or dismiss the appeal or enhance the assessment or penalty or other amount: Provided that before making an enhancement the appellant shall be given an opportunity of being heard on the proposal of enhancement. (7) The Appellate Authority shall serve the appellant, with an order in writing, of the appeal decision, setting forth the reasons for the decision.' 8. A person dissatisfied with the decision of an appellate authority may file a second appeal before the Tribunal under Sub-section 1 of Section 36, in which Sub-section 3 vests the Tribunal with 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....
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....rity. 11. The provisions may be also viewed from a different perspective. Sub-section 4 of Section 35 provides that no appeal under Section 35 shall be entertained by the appellate authority unless such appeal is accompanied by satisfactory proof of payment of the whole of the undisputed amount of tax, interest and penalty and 10% of the disputed amount of tax, interest and penalty. Non-compliance of this provision may result in dismissal of the appeal or if the appellate authority is not satisfied that the whole of the undisputed amount of tax was deposited, he is empowered to reject by order, the non-compliance of this provision. Such an order, in the light of the words used in Section 7 would also not be appealable under Sub-section 1 of Section 36 as this type of order would not amount to a "decision" on the appeal, that is on the assessment carried out under Section 29 and would not be an order which sets forth reasons for such a decision as contemplated 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 ....
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....t all orders passed under Section 31. It held therein that the jurisdiction of the Appellate Assistant Commissioner under Section 31 is not limited to the hearing of the appeal on merits of the assessment alone and a rejection of the appeal on grounds of being beyond limitation also amounted to the rejection of the appeal. The provisions of Section 33 of the 1922 Act provide for an appeal against any order passed by an Appellate Assistant Commissioner under Section 28 and Section 31 of the Act and it is in that light that the above judgment holds that orders refusing the condone delay in filing of appeal have the force of an order passed under Section 31 by the appellate authority. Section 33 provides for appeals against all "orders" and not only against "decisions" which are contemplated under Sections 35 and 36 of the VAT Act. Unlike the 1922 Act, the VAT Act makes a distinction between all other orders and a "decision" under Sub-section 7 of Section 35 and Sub-section 1 of Section 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 Me....
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....l Division of a High Court may appeal to the Commercial Appellate Division of that High Court within a period of sixty days from the date of judgment or order, as the case may be: Provided that an appeal shall lie from such orders passed by a Commercial Division or a Commercial Court that are specifically enumerated under Order XLIII of the Code of Civil Procedure, 1908 (5 of 1908) as amended by this Act and section 37 of the Arbitration and Conciliation Act, 1996 (26 of 1996). (2) Notwithstanding anything contained in any other law for the time being in force or Letters Patent of a High Court, no appeal shall lie from any order or decree of a Commercial Division or Commercial Court otherwise than in accordance with the provisions of this Act." 18. Whilst examining the meaning of the word "decision", and whether it would include all orders which are otherwise not appealable this Court has answered, amongst various other issues, the following three issues: [1] Whether the word "decision" means a decree? [2] 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/d....
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.... trial court or not under Article 133 (1) of the Constitution?" While deciding the said question, the Apex Court also considered the question as to what is the denotation of the word "decision". In para 7 of the said Judgment, the Apex Court has observed as under: "7. The next question to consider is: what is the denotation of the word "decision" used in the said clause. The argument for the respondent is that the word "decision" does not mean the whole of the decision but the decision on that part of the controversy between the parties which is brought to this Court in appeal. In support of the argument that the decision does not mean the entire decision of the trial court reliance is placed on the provisions of O. 20, Rules 4 and 5. Rule 4 of O. 20 deals with the judgments of Small Cause Courts and judgments of other Courts, and it provides that the judgments falling under the first clause need not contain more than the points for determination and decision thereon, whereas the judgments falling under the latter class should contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision. There is not doubt th....
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.... whole, compare it with the decision of the trial court as a whole and decide whether the appellate decree is one of affirmance or not. In this enquiry the nature of the variation made whether it is in favour of the intending appellant or otherwise would not be relevant." From the aforesaid judgment it is apparent that the word "decision" would mean the entire decision of the Trial Court and not part of it. Secondly, in Raja Tassaduq Rashul Khan and another vs. Manik Chand, Privy Council, while considering the definition of the word "decision" has observed as under: "Now there is no definition of the word 'decision' in the Civil Procedure Code, but there is a definition of the word 'decree'. It says 'decree' means the formal expression of a adjudication upon any right claimed or defence set up in a Civil Court when such adjudication, so far as regards the Court expressing it, decides the suit or appeal. Then, "judgment" is defined as meaning "the statement given by the Judge of the grounds of a decree or order." Therefore their Lordships have two things: they have a decree which decides the suit, and they have the word "judgment," ....
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....on that the proper meaning to be attached to the words "'local area" in Entry 52 of the Constitution, (when the area is a part of the State imposing the law) is an area administered by a local body like a municipality, a district board, a local board, a union board, a Panchayat or the like. The premises of a factory is therefore not a "'local area". 47] From the above decisions it can be seen that the words and phrases previously interpreted by the Courts have to be used in aid to interpretation of later statute. The word "decision" therefore in this context would mean a final decision in the entire suit and therefore a decree. 61] It has to be noted that the question which falls for consideration before this Court is : Whether, in an application for execution of an Award passed under the Arbitration Act, 1996, an order passed by the learned Single Judge is appealable under Section 13 (1) of the Commercial Courts Act as if it is a decree? And we are called upon to decide the said question only. 62] We therefore answer the questions framed in para 19 above as under: QUESTIONS ANSWERS [1] Whether, in an application for execution of an Award....
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....the Act even a revision under Section 38 to the High Court is only against a "decision of the Tribunal or Commissioner, that too on a question of law or erroneous decision or a failure to decide a question of fact. Any other orders which may be passed by the Tribunal are not appealable and it is only an order containing the reasoned decision on the merits of a second appeal on questions specified in Sub-Section 2 of Section 38 which are amenable to a Revision by the High Court. This, it appears is the scheme of Sections 35, 36 and 38 of the Act. 21. Having held that no appeal would lie against the impugned order, I proceed to record the rival submissions made on whether the impugned order has been correctly passed, holding that the petitioner had not shown reasonable cause for preferring the appeal beyond the period of limitation under Sub-Section 1 of Section 35 of the VAT Act. SUBMISSIONS ON MERITS: 22. Learned Senior Advocate Shri Agnelo Diniz contends that the notice containing original order of assessment under Sub-Section 6 of Section 29 is an order to be retained by the assessee, and for the purpose of filing an appeal under Section 35, Rule 33 of the VAT Rules prov....
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....ectly passed. CONSIDERATION OF SUBMISSIONS ON MERITS: 25. 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. Though the provisions of Act and Rules do not specify in detail the manner in which certified copies are to be obtained, it stands to reason that when an application for certifie....