Pundhir Gram Udyog Patti Kalyana, Samalkha vs State of Haryana

Ajay Kumar Mittal, J.—This order shall dispose of three appeals bearing VATAP Nos. 54 to 56 of 2012 as identical issues are involved therein. For brevity, the facts are taken from VATAP No. 54 of 2012.

This appeal has been filed by the Revenue u/s 36 of the Haryana Value Added Tax Act, 2003 (in short, "the Act") against the orders dated June 9, 2008 and August 27, 2010 (annexures P6 and P8) passed by the Haryana Tax Tribunal (hereinafter referred to as, "the Tribunal") relating to assessment year 2007-08 claiming the following substantial question of law:

Whether, in the facts and circumstances of the case, in particular, the appeals filed by the appellant when the entire additional demand has been deposited, the Tribunal should have allowed the review petition and directed the first appellate authority to hear the appeals on merit or not in the interest of justice and fair play ?

Briefly stated, the facts necessary for adjudication as narrated in the appeal are that the appellant was issued certificate by the Khadi and Village Industries Board, Haryana, for the manufacture of jam/jalli/juices/dehydrate fruit/veg tomato catch up/sauce/other sauces/vinegar and squashes being products of village industries. The appellant vide application dated August 2, 2002 (annexure P2) applied to the assessing authority for the grant of exemption certificate from the payment of sales tax under the Haryana General Sales Tax Act, 1973 (in short, "the State Act"). The assessing authority vide orders dated March 23, 2006 framed assessment for the years 2001-02 and 2002-03 after issuing statutory notice dated January 28, 2005. The assessing authority assessed tax at Rs. 58,776 and Rs. 52, 641 under the State Act and Rs. 25,637 and Rs. 3,019 under the Central Sales Tax Act (CST), respectively. Against the said assessment orders, the appellant filed four appeals (two under the State Act and two under the CST Act) along with an application for entertaining the appeals without payment of tax. The appellant was allowed to deposit the additional demand in all the four appeals in four instalments subject to the furnishing of surety bond to the satisfaction of the assessing authority vide order dated September 19, 2006 passed by the appellate authority. The appellate authority vide order dated August 27, 2007 (annexure P5) dismissed all the appeals filed by the appellant as the Taxation Inspector who was representing the Department had reported that the appellant had deposited only Rs. 28,656 on October 18, 2006 and had defaulted thereafter. Even surety bond had also not been furnished. Against the order dated August 27, 2007 of the appellate authority, the appellant filed appeals before the Tribunal who vide order dated June 9, 2008 (annexure P6) dismissed the appeals holding that the appellant failed to deposit the amount as directed by the appellate authority. The review petition filed by the appellant was also dismissed on August 27, 2010 vide annexure P8. Hence, the present appeals by the assessee.

The learned counsel for the appellant submitted that the amount which was directed by the appellate authority to be deposited as a pre-condition for hearing of the appeal has now been deposited by the appellant, the appeal should have been heard on merits.

After hearing the learned counsel for the appellant, we do not find any merit in the said contention. The appellate authority had directed the appellant to deposit the additional demand in all the four appeals in four instalments vide order dated September 19, 2006 whereas according to the learned counsel, the amount was deposited in 2010. The appellant had not sought any extension of time for depositing the amount. Once that was so, there was a delay of more than four years which has not been explained by the learned counsel. In such a situation, it could not be said that the delay in depositing the amount for hearing of the appeal was bona fide. The amount having been recovered by the respondents in 2010 would not, thus, entitle the appellant for hearing of the appeal by the first appellate authority more particularly when the same already stood dismissed on August 27, 2007 and order upheld by the Tribunal on June 9, 2008.

In view of the above, no substantial question of law arises in these appeals. Accordingly, the appeals are dismissed. Further, there is a delay of 367 days'' in filing the appeals. The plea of the appellant that the delay had occurred due to some domestic reason and not knowing the limitation for filing the appeal, does not fall within the ambit of "sufficient cause" u/s 5 of the Limitation Act, 1963. Since no justifiable cause has been shown for condonation of delay in filing the appeal, the application is also dismissed.