- (1.) This order shall dispose of VATAP Nos. 3 and 5 of 2012 as according to the learned counsel for the appellant, the facts involved therein are similar and the grounds seeking condonation of delay before the first appellate authority in both the appeals are identical. In VATAP No. 3 of 2012, there was a delay of 789 days whereas in VATAP No. 5 of 2012, there was a delay of 654 days in filing the appeal before the first appellate authority. For brevity, the facts are being taken from VATAP No. 3 of 2012. This appeal has been filed by the assessee under section 36 of the Haryana Value Added Tax Act, 2003 (in short, "the Act") against the order dated June 13, 2011 (annexure A3) passed by the Haryana Tax Tribunal (hereinafter referred to as, "the Tribunal") claiming the following substantial questions of law : (I) Whether, in the facts and in the circumstances of the case, the Tribunal was justified in refusing to condone the delay ? (II) Whether, in the facts and in the circumstances of the case, the cause given by the dealer could have been rejected as being insufficient ? (III) Whether, in the facts and circumstances of the case, the Tribunal was right in law in dismissing the appeal for there being no 'sufficient cause' to condone the delay especially when the first appellate authority had recorded a finding that the delay of appeal was actually because of the legal position which became clear in November, 2009 ? (IV) Whether, in the facts and circumstances of the case, where substantial justice and procedure technicality of limitation were pitted against each other, was the dismissal of the case on technicality of limitation justified ? (V) Whether, in the facts and circumstances of the case, when there was no mala fide for delaying the proceedings and a bona fide explanation has been tendered, was it not a case where the delay should have been condoned and at least the order of Assessing Authority could have been tested on merits at least once in appeal ? (VI) Whether, in the facts and circumstances of the case, where bona fide explanation of delay has been tendered and where the matter is covered by a decision of the Tribunal, was the dismissal of the case on grounds of limitation justified ?
(2.) The facts necessary for adjudication of the present appeal as narrated therein are that the assessment for the assessment year 2003-04 was framed vide order dated March 5, 2007. It was found that the provisional refund which was allowed to the assessee-dealer as an exporter was excess amounting to Rs. 28,06,654. Thereafter, a notice was issued for charging of interest on excess refund and vide order dated September 10, 2007 (annexure A1), the assessing authority charged interest of Rs. 17,82,168. The said order was communicated to the assessee on September 17, 2007. Feeling aggrieved, the assessee filed an appeal before the appellate authority. As the appeal was delayed, an application for condonation of delay was also filed along with the appeal. The appellate authority vide order dated February 11, 2010 (annexure A2) dismissed the appeal being time-barred as there was delay of 789 days. Still being dissatisfied, the assessee filed an appeal before the Tribunal. The Tribunal vide order dated June 13, 2011 (annexure A3) upheld the order of the appellate authority and dismissed the appeal of the assessee. Hence, the present appeal.
(3.) The solitary question that arises for consideration in these appeals is whether there was sufficient cause for condonation of delay in filing the appeals which was belated ?;