The Bombay High Court has quashed an order refusing to condone the delay in filing an appeal due to a lapse in communication under Section 35(7) of the Value Added Tax ( VAT ) Act and has directed a fresh hearing.
The petitioner, Palette Hotels (India) Pvt Ltd, was issued an assessment order for the Assessment Year 2014-15 by the Assistant Commissioner of Commercial Taxes, Vasco-da-Gama Ward, on 13.03.2018. This order assessed the petitioner to a tax of Rs. 13,61,192/-, imposed a penalty of Rs. 1,200/-, and added interest for delayed payment amounting to Rs. 7,35,043/-.
The petitioner claimed that the order was not served on them on the date it was issued. Consequently, they applied for a certified copy of the order on 26.04.2018 but alleged that no intimation was given about the availability of the certified copy.
A.F Diniz, representing the petitioner, argued that no communication regarding the certified copy was received from the Assessing Authority. Despite sending reminders and a formal communication on 04.09.2020, the petitioner only received the certified copy on 15.09.2020. An appeal was then filed on 22.09.2020, accompanied by an application for condonation of delay, citing the lack of communication from the Assessing Authority as the reason for the delay.
The respondent, represented by Maria Simone Correia, claimed that the assessment order was served on the same date it was issued. They argued that the petitioner had no valid reason for the delay in filing the appeal and that the application for a certified copy was not followed up in a timely manner.
The court found that the petitioner applied for a certified copy on 26.04.2018, which was ready by 14.09.2018. However, no intimation was given to the petitioner regarding the readiness of the certified copy. The petitioner’s Legal Officer inspected the file on 23.09.2021 and found that the application for a certified copy made on 26.04.2018 was in the concerned file, along with a certified copy dated 14.09.2018, indicating it was ready. The Appellate Authority, by the impugned order dated 09.08.2021, dismissed the application for condonation of delay, stating the petitioner had not shown reasonable cause for the delay under Section 35(2) of the VAT Act.
The single bench of Justice Valmiki Menezez held that the order dated 09.08.2021 passed by the respondent refusing to condone the delay in filing the petitioner’s appeal and refusing to admit the appeal was not a “decision” within the meaning of Sub-section 7 of Section 35 and Sub-section 1 of Section 36 of the VAT Act and was therefore not amenable to challenge in an appeal under the Act.
Furthermore, the court quashed and set aside the impugned order dated 09.08.2021 passed by Respondent No. 1 refusing to condone the delay in filing the appeal by the petitioner under Section 35 of the VAT Act, and condoned the delay.
The Assistant Commissioner of Commercial Taxes was directed to accept the appeal dated 24.09.2020 and decide it in terms of Sub-section 6 of Section 35 of the Goa VAT Act, preferably within a period of 4 months from the receipt of the order.
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