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2009 DIGILAW 1418 (PNJ)

VARUN EXPORT v. STATE OF PUNJAB.

2009-08-13

JASWANT SINGH, M.M KUMAR

body2009
JUDGMENT M.M. Kumar - This order shall dispose of a bunch of 16 appeals filed under section 68 of the Punjab Value Added Tax Act, 2005 (for brevity, "the Act") against the order dated July 3, 2008, passed by the Value Added Tax Tribunal, Punjab, Chandigarh, in Appeal Nos. 134, 135, 137 to 147 and 149 to 151 of 2007-08. However, the facts are being referred from V.A.T.A.P. No. 37 of 2009. The dealer - appellant has filed the instant appeal against the order dated July 3, 2008, passed by the Tribunal condoning the delay in filing the appeals by the Revenue - respondent - State of Punjab and setting aside the order dated September 1, 2003 passed by the Deputy Excise and Taxation Commissioner (Appeals), Ferozepur Division, camp at Amritsar. The grievance of the dealer - appellant is that the Tribunal has not decided the appeals of the Revenue on the merits rather allowed the same on the ground of limitation only and directed the DETC (A) to decide the controversy afresh. Notice of motion. Mr. Piyush Kant Jain, Additional Advocate-General, Punjab, who is present in the court, accepts notice. With the consent of the learned counsel for the parties the appeal was taken up for final disposal today itself. The brief facts of the case are that the dealer - appellant had filed its returns for the assessment years 1994-95 to 1996-97. The Assessing Authority, Amritsar, was not satisfied with the returns. On September 1, 1996, a notice in form STXIV was issued to the dealer - appellant but no one had appeared. Thereafter, the Assessing Authority created additional demands of Rs. 19,33,935, Rs. 42,96,850, Rs. 1,06,116 and Rs. 10,87,741, for the respective assessment years due to non-production of declaration forms and proofs regarding tax-paid purchases, etc., as well as on account of total tax on paddy and rice, vide ex parte order dated April 29, 2002 (A1). Against the order dated April 29, 2002, the dealer - appellant filed appeals against the DETC (A). The principal ground raised by the dealer - appellant was that the order passed by the Assessing Authority was barred by limitation, as per the amendment made in section 11 of the Punjab General Sales Tax Act, 1948 (for brevity, "the 1948 Act") by Act No. 12 of 1998. The principal ground raised by the dealer - appellant was that the order passed by the Assessing Authority was barred by limitation, as per the amendment made in section 11 of the Punjab General Sales Tax Act, 1948 (for brevity, "the 1948 Act") by Act No. 12 of 1998. The dealer asserted that the assessment could have been completed within three years from the last date prescribed to file the return. The first appellate authority allowed the appeals holding the assessment orders as time-barred, vide order dated September 1, 2003 (A2). On November 26, 2007, the Revenue - respondent filed appeals before the Tribunal against the order dated September 1, 2003 passed by the Deputy Excise and Taxation Commissioner (Appeals). Along with the appeals, the application for condonation of delay of almost four years in filing the appeals was also filed (A3). On July 3, 2008, the Tribunal allowed the appeals and condoned the delay. The operative part of the order dated July 3, 2008, passed by the Tribunal reads thus : "From the order of the assessing authority, it would come out that delay in finalization of the assessment had been due to the fact that the dealer/assessee did not produce record in spite of notices issued and even notice for ex parte assessment issued. The appeals had been accepted by the Deputy Excise and Taxation Commissioner (Appeals) only on the point of limitation but in view of the judgment of the High Court in the case of Emkay Industries v. State of Punjab [2005] 139 STC 57, the provisions of the amended Act are applicable after the assessment years 1997-98 onwards whereas in this case the assessment years involved are 1994-95, 1995-96 (PGST), 1995-96 (CST) and 1996-97. Under these circumstances order dated September 1, 2003 of the DETC (A) is liable to be set aside and the appeals are liable to be accepted. When huge revenue is involved and appeals had been accepted by the Deputy Excise and Taxation Commissioner (Appeals) only on the technical ground of limitation then I find it a fit case where delay in filing the appeals should be condoned. Under these circumstances delay in filing the appeals is condoned. The appeals are accepted. Order dated September 1, 2003 of the Deputy Excise and Taxation Commissioner (Appeals) is set aside. Under these circumstances delay in filing the appeals is condoned. The appeals are accepted. Order dated September 1, 2003 of the Deputy Excise and Taxation Commissioner (Appeals) is set aside. Since the appeals were not decided on the merits and were accepted only on the short ground of limitation, the Deputy Excise and Taxation Commissioner (Appeals) shall hear the appeals on the merits afresh and decide the same, as expeditiously as possible." Mr. Avneesh Jhingan, learned counsel for the appellant, has vehemently argued that no sufficient cause for condonation of delay was put forward by the Revenue - respondent before the Tribunal but even then the delay has been condoned without assigning any reason. He has further submitted that the Tribunal also did not consider the merits of the case while disposing of an application for condonation of delay. According to the learned counsel it seems that the Tribunal has merely influenced by the amount of revenue involved. Mr. Piyush Kant Jain, Additional Advocate-General, Punjab, on the other hand has contended that the Tribunal has rightly passed the impugned order dated July 3, 2008, because it was a fit case where the delay in filing the appeal should be condoned. He has further submitted that it is equally important to safeguard the interest of the Revenue where huge amount is involved. Having heard learned counsel for the parties and perusing the paper book we find that the issue raised in these appeals is no longer res integra. The order dated July 3, 2008 passed by the Tribunal came up for consideration before a Division Bench of this court (of which one of us, M. M. Kumar, J., was a member) in V.A.T.A.P. No. 2 of 2009 (Sachdeva & Sons Rice Mills Pvt. Ltd., Amritsar v. State of Punjab [2009] 23 VST 377). The Division Bench has allowed the appeal vide order dated March 18, 2009, by observing as under : "To our mind, whether it is the State or the individual, unless explanation is offered for the delay that it is either reasonable or satisfactory to the satisfaction of the court, delay cannot be condoned. The learned counsel for the appellant has rightly submitted that no sufficient cause was shown by the State of Punjab for condoning the delay. The learned counsel for the appellant has rightly submitted that no sufficient cause was shown by the State of Punjab for condoning the delay. The State, as a litigant, could not claim a special status or a right to condonation of delay without showing at least reasonable amount of care and diligence in pursuing this case. Moreover, the Limitation Act still exists in the statute book and its provisions had to be complied with. The record clearly spells out that the State had failed to show that it had sufficient reason for not filing the appeal in time and there was no justification from the record for condoning the delay merely on the ground that huge revenue is involved and moreover, the Tribunal, while disposing of the application for condonation of delay, could not touch the merits of the case. No reasons have been assigned by the Chairman of the Tribunal, which led him to condone the delay in filing the appeal. The existence of sufficient cause can only be found out from the reading of the order, which, admittedly, does not exist in the present case." We find that the aforementioned reasoning can be safely applied to the present bunch of appeals. Accordingly, these appeals are allowed being squarely covered by the Division Bench judgment of this court rendered in V.A.T.A.P. No. 2 of 2009 (Sachdeva & Sons Rice Mills Pvt. Ltd., Amritsar v. State of Punjab [2009] 23 VST 377). The matter is remanded back to the Tribunal for deciding the questions of law raised in the appeals by the respondent - State in accordance with law, within four months from the date a certified copy of this order is received. The Tribunal is directed to intimate the parties by issuing notices to them of the next date of hearing so fixed by it. It is pertinent to notice that along with the appeals, the dealer - assessee have also filed miscellaneous applications seeking condonation of delay in re-filing the appeals. Since no serious objection has been raised by the learned counsel for the Revenue - respondent, therefore, the same are allowed as prayed. A photocopy of this order be placed on the files of all the connected appeals.