- (1.) C.M. No. 8318-CII of 2012 1. There is a delay of 81 days in filing the appeal. After perusing the application and hearing learned counsel for the parties, the delay is condoned. The application stands disposed of. VAT Appeal No. 46 of 2012 This appeal has been preferred by the appellant under Section 36 of the Haryana Value Added Tax Act, 2003 (in short, "The Act") against the order dated 23.08.2011, Annexure A-4 passed by the Value Added Tax Tribunal, Haryana, Chandigarh (for brevity, "the Tribunal") in STA No. 994 of 2009-10, claiming following substantial question of law:- i) Whether in the facts and circumstances of the case, the order of the tribunal which is based upon overruled authority and the authority distinguished by the Full Bench of Punjab and Haryana High Court, is sustainable in the eyes of law? ii) Whether in the facts and circumstances of the case, Section 5 of the Limitation Act is applicable to the proceedings under the Haryana General Sales Tax Act, 1973? iii) Whether in the facts and circumstances of the case, the appellant should be made to suffer by not condoning the delay which has occurred due to the fault of the counsel? iv) Whether in the facts and circumstances of the case, the merits of the case could be discussed for the purpose of condonation of delay? v) Whether in the facts and circumstances of the case, the term 'sufficient cause' is to be liberally construed? vi) Whether in the facts and circumstances of the case, in absence of any rebuttal or there being any material contrary to the affidavit filed, could be contents of the same be ignored or rejected?
(2.) The facts, in brief, as narrated in the appeal may be noticed. The appellant-assessee is a proprietorship concern and was running a trading business at Bhiwani. It filed its returns and deposited the tax in accordance with law. For the assessment year 2001-02, the assessment was framed ex-parte and a demand of Rs. 4,03,768/- was created vide order dated 4.9.2007, Annexure A-1. The appellant handed over the papers to his counsel for filing appeal but later on it came to know that no appeal had been filed and as a result delay of about two years had occurred. Thereafter, on 26.11.2009, the petitioner filed an appeal alongwith application for condonation of delay supported by an affidavit. The first appellate authority i.e. Joint Excise and Taxation Commissioner (Appeals) vide order dated 19.1.2010, Annexure A-3, refused to condone the delay and dismissed the appeal by relying upon decision of the Hon'ble Supreme Court in Commissioner of Sales Tax, Uttar Pradesh, Lucknow v. Parson Tools and Plants, Kanpur, 1975 35 STC 413 and decision of this Court in Gamsha Pipe Limited v. The State of Haryana, 1977 39 STC 546. It was held that section 5 of the Limitation Act, 1963 (in short, "the Limitation Act") was not applicable to the proceedings under the Haryana General Sales Tax Act, 1973 (in short, "the 1973 Act"). Still not satisfied, the appellant filed second appeal before the Tribunal. Vide order dated 23.8.2011, Annexure A-4, the Tribunal upheld the order passed by the first appellate authority and dismissed the appeal. Hence the present appeal before this Court.
(3.) The issue that arises for determination in this appeal is whether the tribunal had the power to condone the delay under Section 5 of the Limitation Act. Learned counsel for the appellant relied upon a Full Bench Judgment of this Court in Bharat Rubber and Allied Industries v. The State of Punjab and others, 1980 46 STC 367 and a Division Bench Judgment of this Court in Shivam Riceland v. State of Haryana, 2001 123 STC 23 to contend that provisions of Section 5 of the Limitation Act were applicable even in respect of proceedings under the 1973 Act.;