Remanded

M/S Raj Enterprises and Another v. Additional Commissioner , Aligarh and Another

Allahabad HC24 Apr 2019WTAX/42/2019

Case brief

AI extract

What is this about?

In this writ petition, the High Court quashed the Additional Commissioner (Appeals)'s order rejecting an appeal filed beyond limitation. Relying on principles of equity and a Division Bench judgment, the Court remanded the matter to the first appellate authority to adjudicate on merits after providing notice and opportunity of hearing, despite the statutory bar on condoning delay beyond 30 days.

What did the court decide?

Impugned order dated 04.12.2018 set aside; matter remanded to first appellate authority to consider appeal on merits without raising objection on limitation.

M/S Raj Enterprises and Another Vs… — Civil Procedure and Limitation | Allahabad HC (2019)

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Court No. - 5

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Case :- WRIT TAX No. - 42 of 2019

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Petitioner :- M/S Raj Enterprises And Another Respondent :- Additional Commissioner , Aligarh And Another Counsel for Petitioner :- Shyam Sunder Counsel for Respondent :- C.S.C.

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Hon'ble Ashok Kumar,J.

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Heard learned counsel for the petitioners and learned Standing Counsel.

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By the impugned order dated 04.12.2018, the Additional Commissioner (Appeals), Aligarh has rejected the appeal of the petitioners on the ground that the same is filed beyond the limitation.

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The contention of learned counsel for the petitioners is that the copy of the order of assessing authority was served upon the petitioner on 11.01.2018 and the appeal has to be filed beyond the period of three months from the date of receiving of copy of the order on 14.06.2018. The appellate authority, therefore has rejected the appeal on the ground that he has no authority to condone the delay beyond the period of 30 days as provided under Section 107(4) of the U.P. VAT Act.

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Having heard the learned counsel for the petitioners and perused the order passed by the first appellate authority.

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The appeal was not filed by the petitioner within the stipulated period for the reason that the owner/proprietor of the firm was ill in between 07.04.2018 to 13.06.2018.

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In support of ailment, the petitioner has produced the copies of the medical certificate issued by the Senior Medical Practitioner namely Dr. Sanjeev Kumar Sharma, MS, MCH (Neuro). The ailment which has been mentioned in the certificate prima facie appears to be the ailment which could take some time for recovery.

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Learned counsel for the petitioner has also placed reliance on a Division Bench judgment of this Court in the case of M/s Central Industrial Security Forces, FGUTPP Unit vs. Commissioner of Central Goods and Service Tax and Central Excise and 2 others in which this Court has observed as follows:

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"Admittedly the appeal was filed beyond time, however, in the facts and circumstances we are of the considered opinion that the delay was not

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occasioned because of any fault on the part of the petitioner but was due to circumstances which was beyond his control. However since the Act does not empowers the appellate authority to condone the delay 30 days beyond the prescribed limitation, no illegality is found to have been committed by the appellate authority however in the interest of justice we feel that the petitioner is entitled to be afforded an opportunity of hearing on merits."

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Considering the submission of learned counsel for the petitioner and the decision cited, the impugned order dated 04.12.2018 passed by the appellate authority is set aside and the matter is remanded before the first appellate authority (respondent no.1) with a direction to consider and adjudicate upon the appeal filed by the petitioner on merits without raising any objection on the limitation, after notice and opportunity of hearing to all concerned.

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The writ petition is, accordingly, disposed of .

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Order Date :- 24.4.2019 A.Kr.*

M/S Raj Enterprises and Another v. Additional Commissioner , Aligarh and Another

Case brief

What is this about?

What did the court decide?

M/S Raj Enterprises and Another v. Additional Commissioner , Aligarh and Another

Case brief

What is this about?

What did the court decide?

What the court decided

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