Allowed

Sunshine Electricals Pvt. Ltd., Rep. by Its Managing Director, Sadanand P. Verenkar., v. Asstt. Commissioner of Commercial Tax, Govt. of Goa and Anr.

Bombay HC25 Nov 2019TRA/3/2019

Case brief

AI extract

What is this about?

The High Court allowed the Tax Revision Application, condoning the delay in filing an appeal under Value Added Tax, 2005. The court held that service on the petitioner's consultants (due to severe health issues) was insufficient, deeming the actual receipt of notice by the petitioner as within the limitation period. The petitioner must deposit the tax demand and costs to regularize the appeal.

What did the court decide?

The application for condonation of delay is deemed allowed only if the petitioner deposits the demanded tax amount and costs within four weeks; the Appellate Authority is directed to decide the appeal

Sunshine Electricals Pvt. Ltd., Rep. by Its Managing… — Writ and Judicial Review | Bombay HC (2019)

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tra no.3 of 2019

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IN THE HIGH COURT OF BOMBAY AT GOA TAX REVISION APPLICATION NO.3 of 2019

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M/s. Sunshine Electricals Pvt. Ltd.

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A Company registered under
the Indian Companies Act,
Having its registered office at Plot No.30,

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Thivim Industrial Estate,
Karaswada, Mapusa – Goa 403 526.
Represented herein by its Managing Director
Mr. Sadanand P. Verenkar
Having Office at Plot No.30,
Thivim Industrial Estate,
Karaswada, Mapusa-Goa.

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…. Petitioner

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V/s

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1. Asst. Commissioner of Commercial Tax,

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 Government of Goa,
 Having office at the Office of
 Assistant Commissioner of Commercial

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 Taxes, Mapusa Ward, Mapusa-Goa.

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2. The Commissioner of Commercial Tax,

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 Government of Goa,

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 Panjim-Goa.

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….Respondents

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Shri A.D. Bhobe, Advocate for the Petitioner.

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Shri D. Pangam, Advocate General with Shri Deep Shirodkar,
Additional Government Advocate for the Respondents.

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 Coram:- M. S. SONAK &
 PRITHVIRAJ K. CHAVAN, JJ.

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 Date:- 25th November, 2019

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tra no.3 of 2019

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ORAL JUDGMENT : (Per M.S. Sonak, J.)

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 Heard Shri Bhobe, learned Counsel for the petitioner and Shri
D. Pangam, learned Advocate General along with Shri Deep
Shirodkar, learned Additional Government Advocate for the
respondents.

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2.This Tax Revision Application is admitted and with the
consent of the learned Counsel for the parties taken up for final
disposal forthwith.

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3.The challenge in this Tax Revision Application is to the
judgment and order dated 25/03/2019 made by Administrative
Tribunal in Value Added Tax Appeal No.4/2018. By the impugned
judgment and order, the Tribunal has held that since the appeal was
instituted beyond the period of one year from the date of the receipt
of the impugned order dated 31/03/2012 made by the Commercial
Tax Officer, the same is barred by limitation and there was no
provision to also consider the application for condonation of delay.

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4.Section 35 of the Value Added Tax, 2005 (said Act), inter alia,
provides that any person objecting to an order affecting him passed
under the provisions of this Act by an authority may appeal to
Appellate Authority as may be prescribed within sixty days from the

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tra no.3 of 2019

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date of receipt of order by him.

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Sub-section 2 of Section 35 provides that where the Appellate
Authority is satisfied that the person has reasonable cause for not
preferring an appeal within sixty days, he may accept an appeal,
provided it is made within a period of one year, from the date of
receipt of order by him.

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5.In this case, the order dated 31/03/2012 sought to be appealed
before the Appellate Authority, it appears was served upon some
representative, not actually upon the appellant. In the application
for condonation of delay, though vaguely, the contention was that
the person on whom the order may have been served was not the
representative of the appellant. He was merely a tax consultant. It is
further the case of the petitioner that the said representative, on
account of ill health failed to inform the petitioner about such order
until 22/05/2012. On this date, the petitioner applied for certified
copy which was delivered on 24/05/2012. The appeal was thereafter
filed on 26/04/2013.

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6.Shri Bhobe submits that since the appeal was filed within a
period of one year from the date of receipt of impugned order dated
31/03/2012, the Appellate Authority was duty bound to consider
the cause shown for condonation of delay. Shri Bhobe submits that

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4 tra no.3 of 2019

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sufficient cause was shown by the petitioner, and, therefore, the
delay should have been condoned. He relies on the decision of the
Hon'ble Apex Court in the case of Benarsi Krishna Committee &
Ors. V/s. Karmyogi Shelters Pvt. Ltd.1 to submit that service
upon some representative or consultant or advocate is not proper
service, when it comes to computation of period of limitation.

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7. Shri Pangam, the learned Advocate General points out to the application seeking condonation of delay as absolutely vague. He submits that there is no categorical statement with regard to the status of the person upon whom the order was served. He points out that the explanation from 24/05/2012 till 26/04/2013 also does not make out any case for sufficient cause. He points out that the tax deemed in the present case was 13,01,044/- as on 31/03/2012. ₹ He points out that the petitioner has deposited hardly 3,00,000/- ₹ or thereabout. In such circumstances, he submits that there is no case made out to interfere with the impugned order.

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8. Rival contentions now fall for determination.

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9. Though, it is true that there is no sufficient clarity in the application for condonation of delay filed by the petitioner, it

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1 (2012) 9 SCC 496

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5 tra no.3 of 2019

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transpires that the order dated 31/03/2012 was not directly served
upon the petitioner herein. The issue as to whether the party upon
whom this order was served was an authorised representative of the
petitioner or whether he was merely a tax consultant engaged by the
petitioner, is no doubt a relevant issue. However, looking to the
material on record, there is no reason to disbelieve the assertion
made by the petitioner that the person upon whom the order was
served was only a tax consultant engaged by the petitioner and not
the authorised representative of the petitioner.

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10. In the context of the provisions of Arbitration and
Conciliation Act, 1996, the Hon'ble Apex Court in the case of
Benarsi Krishna Committee (supra) has held that the expression
“party to arbitration” means the actual party itself and not the agent
or the advocate of the party.

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11. The petitioner, in this case, has admitted that the intimation
with regard to the order was received by it on 22/05/2012. On the
same date, certified copy was applied for and such certified copy was
delivered on 24/05/2012. The appeal has been filed on 26/04/2013
i.e. within the period of one year from the date of receipt of the
order by the petitioner. Accordingly, the Appellate Authority was
duty bound to consider the cause shown by the petitioner and to

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determine whether the same constitutes sufficient cause.

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12. Ordinarily, the matter was required to be remanded in order to
enable the Appellate Authority to appreciate the cause shown.
However, we find that the petitioner has stated that its old
consultant was not keeping good health and suffering from heart
ailment. The consultant, in fact, underwent bypass surgery as well.
Accordingly, the papers were handed over to another consultant.
However, this consultant also fell sick and virtually lost his eyesight
due to diabetic retinopathy. According to us, in the peculiar facts of
the present case, this constitutes sufficient cause for non instituting
the appeal within the prescribed period. It is true that the petitioner,
should have acted with little greater diligence. Therefore, whilst
condoning the delay, the petitioner will have to be put to terms.

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13. The petitioner, in the first place, will have to pay to the respondents the demanded amount of 13,01,044/- after taking ₹ credit for the amount of 3,00,000/- or thereabout already ₹ deposited by the petitioner.

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14. Shri Bhobe, the learned Counsel for the petitioner, on the basis
of instructions, states that such amount will be paid, no doubt,
without prejudice within a period of four weeks from today.

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15. Secondly, the petitioner will also have to pay costs which we assess at 10,000/-. This costs should also be paid to the ₹ respondents within four weeks from today.

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16. If the aforesaid amounts are indeed paid within four weeks
from today to the respondents and necessary proof of payment is
produced before the respondent no.1 herein, then the application for
condonation of delay made by the petitioner will be deemed to have
been allowed and the delay condoned. The respondent no.1 will
then proceed to decide the petitioner's appeal on its own merits and
in accordance with law. If, however, the petitioner fails to pay the
amounts as aforesaid within four weeks from today, then this
revision petition, shall be deemed to have been dismissed without
any further reference to this Court.

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17. The revision petition is allowed in the aforesaid terms.

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18. All concerned to act on the basis of authenticated copy of this
order.

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 PRITHVIRAJ K. CHAVAN, J.
NH

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 M. S. SONAK, J.

Sunshine Electricals Pvt. Ltd., Rep. by Its Managing Director, Sadanand P. Verenkar., v. Asstt. Commissioner of Commercial Tax, Govt. of Goa and Anr.

Case brief

What is this about?

What did the court decide?

Sunshine Electricals Pvt. Ltd., Rep. by Its Managing Director, Sadanand P. Verenkar., v. Asstt. Commissioner of Commercial Tax, Govt. of Goa and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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