M/s. Brandavan Food Products Vs Commissioner (Appeals) (Chhattisgarh High Court)
Conclusion: Delay of 253 days in filing appeal before CIT(A) due to extraordinary situation such as facing of marital dispute by his daughter, demise of the mother could not be considered when assessee was carrying on the commercial activities/business during the relevant period.
Held: Assessee had challenged department order with the delay of 253 days before CIT (A). The appeal was dismissed on the ground of limitation. Aggrieved by the dismissal of appeal, the assessee approached the High Court wherein Single Judge specifically noted that the reason for the delay of 253 days in filing the appeal offered by assessee was that after passing of the assessment order, assessee was engaged in personal tragedy as his daughter was facing marital dispute and hence, the appeal could not be filed within the time. Single Judge also observed that the so-called extraordinary situation pressed by assessee was not of such nature which had paralyzed assessee’s business or his life and that admittedly, he was carrying on his business during the relevant period. Hence, according to the Judge, there was no pressing emergency which did not permit assessee to prefer an appeal before the CIT (Appeals) on time. The reasoning given by Single Judge was not liable to be interdicted as unsustainable under any circumstances. When assessee contended that he was otherwise engaged in connection with the demise of his mother, even if it was acceptable, it could not cover the inordinate delay of 253 days during which period, assessee did not find it necessary to compromise with the business activities and other commercial transactions. It had to be reasonably presumed that this plea under this head was never argued before the Single Judge; which otherwise would have found a place in the judgment, dealing with the same in appropriate manner. If the assessee had got a case that it was argued, but omitted to be considered, the redressal of the grievance could only be by way of filing a review petition and nothing else. But since it was held that the inordinate delay of 253 days could not be covered by the said incidence/incident, during which period the assessee was admittedly carrying on the commercial activities/business, it did not constitute any ‘extraordinary circumstance’ to have interfered by this Court, invoking the discretionary power under Article 226 of the Constitution of India. Once the period of limitation was specifically prescribed in a statute and stipulates the maximum period/extent of delay which can be condoned, it cannot be condoned by the Apex Court even in exercise of the power under Article 142 of the Constitution of India. Having said so, assessee could not be heard to say that the High Court was still having power to condone the delay beyond the prescribed extent under the statute, by invoking the power under Article 226 of the Constitution, which in fact would be amounting to re-writing the law and contrary to the verdict passed by the Apex Court, which was having a binding effect all over India in view of Article 141 of the Constitution of India.
FULL TEXT OF THE HIGH COURT ORDER / JUDGEMENT
1. Whether the interference declined to entertain the merit of the case by the statutory authorities and also by a learned Judge of this Court dismissing the appeals/writ petitions for the reason that the appeal was filed beyond the maximum time limit stipulated under the statute even after the condonable extent of delay, is correct or not is the question mooted for consideration in these appeals.
2. The thrust of the argument is that the power of this Court under Article 226 of the Constitution is quite wider enough to extend the relief with regard to the merit involved and that the technical ground of delay cannot be a bar in this regard.
3. Four different appeals arise from four different proceedings, all of which were dealt together by the learned Single Judge by passing a common judgment dismissing the writ petitions. Writ Appeal No. 265 of 2019 is treated as the lead case, as suggested by the learned Senior Counsel for the Appellants.
4. We have heard Shri Chetan Sharma, the learned Senior Counsel appearing for the Appellants and Shri Maneesh Sharma, learned Standing Counsel for the Respondents/Department/Revenue.
5. The crux of the factual matrix reveals that the Appellants are supplying bed-rolls and newspapers as required by the award of the contract by M/s. Indian Railways and IRCTC subject to the terms and conditions as agreed upon. The duty cast upon the Appellants based on the contracts was being discharged accordingly and while so, they were served with a show cause notice proposingto tax the supply of newspapers under Section 65(105)(zzt) read with Section 67(76a) and Section 65(24) as ‘outdoor catering service’, while supply of bed-rolls was proposed to be taxed under the category of ‘business support service’ under Section 65(105c) read with Section 65(10)(zzzq) of the Finance Act, 1994 (for short ‘the Act, 1994’).
6. According to the Appellants, the notice was absolutely without any basis as the delivery of goods sold at the direction of the buyer would not involve any services and it does not fall within the definition of ‘caterer’ under Section 65(24) and the ‘outdoor caterer’ under Section 65(76a) of the Act so as to constitute any ‘outdoor catering service’. It is similarly contended that supply of bed-rolls and its maintenance also would not qualify to be branded as ‘business support service’. The explanation submitted by the Appellant in this regard was considered but it was turned down and the assessment proceedings were finalised by the competent authority. Met with the situation, a statutory appeal was preferred before the Commissioner (Appeals) which is belated by 253 days and hence, it was sought to be condoned by filing a petition to condone the delay. The matter was examined by the Commissioner (Appeals) who found that as per the relevant provisions of the statute, the appeal had to be filed within ‘two months’ and thereafter, the delay, if any could be condoned to a maximum period of ‘one month’, on offering sufficient cause. By virtue of the undisputed facts, the appeal was filed belatedly even beyond the condonable extent. The appellate authority dismissed the application for condonation of delay holding that there was no power to condone the said extent of delay and as a natural consequence, the appeal as well.
7. The Appellants moved the Customs, Excise & Service Tax Appellate Tribunal, New Delhi (for short ‘the Tribunal‘) challenging the course and proceedings finalised by the appellate authority i.e. the Commissioner (Appeals) also pointing out that the merit was squarely covered in favour of the Appellant and that the delay had to be condoned in view of the reasons specifically stated forthe delay. However, the appellate authority also took the very same stand as taken by the Commissioner (Appeals) and the appeals came to be dismissed in view of the inordinate delay beyond the extent as specified in the statute, thus, without entertaining the merits. This made the Appellants to approach this Court by filing writ petitions referring to the sequence of events and trying to explain the delay, particularly in connection with the demise of the mother of the authorised signatory and also with reference to the unforeseen situations resulted in connection with the marriage of the daughter of the deponent and also the registration of a crime in connection with the affairs.
8. The learned Single Judge considered all the connected matters together and as per the common judgment dated 20.03.2019 held that the issue involved was no longer res integra as concluded/declared by the Apex Court in Singh Enterprises v. Commissioner of Central Excise, Jamshedpur {(2008) (221) ELT 163 (SC) : (2008) 3 SCC 70}. Reference was also made to the decision sought to be cited by the Appellants in M/s. Shri Sai Rolling Mill v. The Commissioner, Customs, Central Excise & Service Tax & Others; WA No. 322 of 2017 decided on 15.11.2018 whereby the appeal against dismissal of the writ petition was disposed off remitting the matter back to the Central Excise authority for consideration. The learned Single Judge observed that the facts and situation in M/s. Shri Sai Rolling Mill (supra) was totally different and with reference to the factual position involved, it was held that no extraordinary circumstance was substantiated by the Appellant/Petitioner to warrant interference by invoking the powers of this Court under Article 226 of the Constitution of India, in turn leading to dismissal of the writ petitions. This is to the chagrin of the Appellants who have filed these appeals seeking indulgence of this Court.
9. Shri Chetan Sharma, the learned Senior Counsel appearing for the Appellants submits that the appeals have been preferred under some firm grounds as noted below:
