Appellant can’t be penalized for inability of an advocate who had expired

Chopra Generators Vs State of Punjab (VAT Tribunal, Punjab)

There is a specific provision made by the legislature in its wisdom i.e. Section 64 which enables Appellate Authority to condone; the delay in the interest of justice if it is not filed within stipulated period. The First Appellate Authority has considered the plea raised before it dismissed the„ application for condonation of delay. The appellant before this Tribunal has come forward with truth and has conceded the circumstances of not filing the appeal within limitation. Bare reading of the Section 64 indicates that the delay can be condoned in the interest of justice and reasons are to be recorded in writing. The application for condonation of delay has been dismissed vide order dated 08.11.2017 only on account of contradictory submissions of the appellant. This Tribunal is of the opinion that it is in the interest of justice to give the appellant a fair opportunity for seeking the adjudication of the first appeal on merits, despite its fault for shifting its stand. He can be penalized by imposing cost for the contradictory stands taken. Believing the fact that. he had received the copy of the order within limitation and that he had handed over the same to Sh. N.S.Bedi who expired after his illness, the said circumstances indicate that on account of unavoidable reasons beyond the control of appellant for which he is not at fault, he can’t be deprived of an opportunity for getting adjudication of the first appeal on merits. There may be malafide on part of the appellant in the cause of delay in adjudication of the matter but the appellant can be directed to furnish costs to the State which are assessed Rs. 10,000/- as the appellant can’t be penalized for inability of an advocate who had expired on account of his ill health for some duration after the receipt of copy of the assessment order. This Tribunal has also taken into consideration the arguments raised by Counsel for the State and express inability to agree with the same as the delay has been permitted to be condoned in the interest of justice and taking into consideration, the fact that the appellant is not at fault even if the contradictory stand is dis-believed.

FULL TEXT OF THE ORDER OF VAT TRIBUNAL, CHANDIGARH

The first appeal filed by the appellant against an order passed by the Designated Officer dated 07.04.2015 creating an additional demand of Rs.10.65,487/- for the assessment year 2012-13 has been dismissed vide impugned order dated 08.11.2017 on the ground that the proprietor of the appellant Sh. Davinder Kumar Chopra has received the order dated 07.04.2015 on 14.05.2015 and there was unreasonable delay of more than two years in filing of the appeal. It is also reflected from the impugned order that after completion of assessment u/s 29 of the Punjab Value Added Tax Act, 2005. The appellant/applicant had not even deposited 25% of the additional demand as required u/s 62(5) of the Act. The Counsel for the appellant has submitted that the appellant is entitled to condonation of delay in filing of the first appeal in order to get an order on merits. When confronted with the lapse of not deposited 25% of the First Appellate Authority, the Counsel submits that an opportunity May be granted to consideration of the appeal after condonation of delay of 2 ‘/₂ years. The said the’ appellant to make deposit u/s 62(5) and permit the contention has been vehemently opposed by Mrs. Sudeepti Sharma, Ld. AAG contended that the appellant has taken up contradictory stands before the First Appellate Authority as well as this Tribunal. The Counsel for the State has argued that the since the appeal was not maintainable, because as per Section 62(4&5) the appeal could not be entertained. The appeal was not maintainable on merits on account of delay.

I have heard Ld. Counsel for the applicant as well as Counsel for the State and considered the plea taken by the appellant befor this tribunal which is to be effect that ,the applicant/appellant had no doubt receipt the copy of the order passed by the Designated Officer dated 07.04.2015. But the same was handed over for filing of the appeal to his Counsel Late Sh. N.S. Bedi. The appellant was under bonafide belief that appeal has been filed on behalf of the Counsel, whereas Counsel for the appellant could not file the appeal as he was suffering from ill health and ultimately died on account of illness. The appellant, however, got the information from department as no appeal has been filed in his case. fle approached his Counsel for filing of the appeal through them after getting the copy of the order filed an appeal on 03.10.2017 which was dismissed on ground of delay.

A perusal of the impugned order indicates that the appellant was represented by Mr. J.S.Bedi, Advocate s/o late Sh. N.S.Bedi, Advocate. No doubt here is contradiction in the plea taken by the appellant who claims himself to be as old senior citizen. The appellant has been dis-believed by the First Appellate Authority by dismissing his appeal u/s 62(1) by declining his prayer u/s 64 of the PVAT Act for condonation of delay.

The perusal of the provisions of Section 62(4) and 62(5) of the 30 days PVAT Act indicate th^at appeal can b_e entertained within a period of from the date of communication of the order appealed against, and that it can be entertained only if it is accompanied by satisfactory proof of prior minimum payment of 25% of the total amount of additional demand of penalty and interest.

There is a specific provision made by the legislature in its wisdom i.e. Section 64 which enables Appellate Authority to condone; the delay in the interest of justice if it is not filed within stipulated period. The First Appellate Authority has considered the plea raised before it dismissed the„ application for condonation of delay. The appellant before this Tribunal has come forward with truth and has conceded the circumstances of not filing the appeal within limitation. Bare reading of the Section 64 indicates that the delay can be condoned in the interest of justice and reasons are to be recorded in writing. The application for condonation of delay has been dismissed vide order dated 08.11.2017 only on account of contradictory submissions of the appellant. This Tribunal is of the opinion that it is in the interest of justice to give the appellant a fair opportunity for seeking the adjudication of the first appeal on merits, despite its fault for shifting its stand. He can be penalized by imposing cost for the contradictory stands taken. Believing the fact that. he had received the copy of the order within limitation and that he had handed over the same to Sh. N.S.Bedi who expired after his illness, the said circumstances indicate that on account of unavoidable reasons beyond the control of appellant for which he is not at fault, he can’t be deprived of an opportunity for getting adjudication of the first appeal on merits. There may be malafide on part of the appellant in the cause of delay in adjudication of the matter but the appellant can be directed to furnish costs to the State which are assessed Rs. 10,000/- as the appellant can’t be penalized for inability of an advocate who had expired on account of his ill health for some duration after the receipt of copy of the assessment order. This Tribunal has also taken into consideration the arguments raised by Counsel for the State and express inability to agree with the same as the delay has been permitted to be condoned in the interest of justice and taking into consideration, the fact that the appellant is not at fault even if the contradictory stand is dis-believed.

The order dated 08.11.2017 is set aside and the delay, in filing of the appeal is condoned subject to payment of cost of Rs.10,000/- within a period of one month. It is made clear that since, the delay has been condoned in filing of the appeal. It will be mandatory for the appellant to comply with the provision of Section 62(5) of the PVAT Act before the consideration of the appeal. In case the provision of Section 62(5) is also complied within a period of one month and the 25% of, the additional demand is deposited alongwith Cost of Rs. 10,000/- before the First Appellate Authority in the appropriate head, the appeal No.VAT- 62 of 2017-18 will be taken up for consideration on merits. It is made clear that in case the appellant fails to make deposit of cost as well as pre deposit u/s 62(5) of the PVAT Act within a period of one month, this appeal will be deemed to have been dismissed. However, in case the present order is complied

with, the first appeal will be taken up for consideration on merits in the first week of October 2021. Nothing mentioned in this order will cause prejudice to any of the parties on merits.

Disposed off.