Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Service tax penalty can’t survive when assessee acted on dept.’s own view of non-taxability: Delhi High Court. *  GST section 74 extended limitation questionable when form 26AS mismatch was already known: Karnataka High Court grants interim relief. *  CGST demand prima facie impermissible after state GST settlement under section 128A: Bombay High Court. *  Supreme Court asks GSTAT to sympathetically consider delay as taxpayers pursued remedy before wrong forum. *  Supreme Court stays Tripura High Court ruling protecting genuine buyers from ITC denial over supplier’s GST default. *  Diary entries alone can’t prove clandestine removal of goods: CESTAT quashes excise penalty on steel trader. *  Customs could investigate preferential tariff claims even before sec. 28DA: Delhi High Court. *  Customs dept. relied on fake AI generated case laws: supreme court quashes Rs. 425.28 crore penalty. *  No GST exemption in affiliation and annual registration charges for admission or conduct Of examinations: GSTAT. *  Mere invoices, cheque payments insufficient to establish genuine movement of goods: GSTAT restores Rs. 43.44 lakh ITC demand. *  Consolidated GST show cause notice covering multiple financial years is not without jurisdiction: Delhi High Court. *  Construction of independent houses on separate plots not taxable as ‘Residential Complex’ without common facilities: CESTAT. *  GST penalty exceeding statutory maximum unsustainable; Allahabad High Court quashes ? 50,000/- penalty after taxpayer filed return and paid late fee. *  GST order against standard chartered bank passed without hearing set aside by Bombay High Court. *  Retracted statements can’t be relied upon without cross-examination: CESTAT quashes gold confiscation. *  Burden to prove misclassification lies on customs department: CESTAT. *  CESTAT quashes Rs. 98 lakh excise demand on clearance of used refractory brick scrap. *  Service tax demand on irrigation works quashed: Karnataka High Court rules sale of goods component not taxable as service. *  GSTAT restores tax and penalty for transporting iron scrap without E-way bill citing intent to evade tax. *  Madras High Court stays GST recovery from directors without opportunity to show cause under section 89. *  Madras high court stays GST recovery notice against directors; finds prima facie case on applicability of section 79(1)(c). *  Procedural lapses can’t justify harsh punishment without serious customs breach: CESTAT quashes customs broker licence revocation. *  Service tax payable on land leasing and sports complex charges: CESTAT. *  Settled customs dispute can’t be reopened through Article 226 challenge to interest liability: Delhi High Court. *  Mere facilitation of customs clearance can’t establish knowledge of smuggling: Madras High Court. *  GST registration cancellation stayed: Allahabad High Court questions 99% ITC utilisation cap under rule 86B. *  Composition scheme lapses automatically on crossing Rs. 1.5 crore turnover: GSTAT. *  Gujarat High Court quashes GST cancellation orders after officer relied on non-existent AI-generated case laws. *  Importers liable for customs duty benefits availed through manipulated scrips: Delhi High Court. *  Procedural E-way bill lapse alone can’t justify penalty where genuine transaction and absence of tax evasion are established: GSTAT.
Subject News *  Documentary evidence dominates probe, further custody unwarranted: mumbai court grants bail in Rs. 22.44 crore customs duty evasion case. *  Business premises can’t remain sealed for non-participation in GST search: Allahabad High Court. *  GST pre-deposit must be refunded proportionately when taxpayer partly succeeds in appeal: Bombay High Court. *  Supreme Court grants 30 days to file GST appeal; keeps pre-deposit issue open due to deposit in parallel CGST proceedings. *  GST demand can’t exceed amount proposed in SCN: Allahabad High Court quashes Rs. 20.47 Crore order. *  Hundreds-of-crores GST demand and heavy 10% pre-deposit no ground to bypass statutory appeal: Punjab & Haryana High Court. *  Delhi High Court refuses to entertain challenge to gold confiscation due to statutory appeal remedy and unexplained delay. *  Procedural error in customs broker licence inquiry can be rectified through remand: Delhi High Court. *  GSTR-2A mismatch alone can’t justify ITC denial without invoice-wise verification; personal hearing mandatory: GSTAT. *  GST order passed without uploading personal hearing notices violates sec. 75(4): Allahabad High Court. *  TAX EVASION - Sec. 74 GST SCN quashed for not spelling out fraud, wilful misstatement or suppression: Allahabad High Court. *  STPI’s SOFTEX certification and NoC charges taxable as business support services: CESTAT. *  Suspicion can’t replace proof: CESTAT quashes penalty in alleged gold-smuggling operation. *   Limitation runs from communication of order: Madras High Court upholds rejection of delayed GST Appeals. *  Rajasthan High Court quashes GST demand over unsigned show cause notice. *  ITC recovery upheld where supplier failed to deposit GST: Rajasthan High Court. *  Customs commissioner’s empowered to make port trust liable for duty on pilfered goods: Supreme Court. *  Rectification proceedings can’t be used to challenge an uncontested GST assessment through a writ petition: Andhra Pradesh HC. *  GST proceedings against deceased proprietor unsustainable without notice to legal heir: GSTAT. *  Mere availment of ineligible self-assessed ITC doesn’t amount to suppression without evidence of fraud or wilful misstatement: GSTAT. *  Disposal of mining overburden by entity authorised by mining lease holder constitutes taxable service: CESTAT. *  Toll plaza data not mandatory for ITC refund: GSTAT. *  Disputed GST fraud allegations require investigation: Punjab and Haryana High Court makes interim bail absolute in alleged fraud and GST fraud case. *  Non-manufacturer contractor liable to deposit excess excise duty collected from buyer: CESTAT. *  GST order can’t reject taxpayer’s reply as “not satisfactory” without reasons: Madhya Pradesh High Court. *  Uncorroborated statements can’t establish alleged diversion of duty-free goods: CESTAT. *  Erection services were not liable to service tax prior to 10th september 2004: CESTAT. *  Sec. 74 GST notice must spell out statutory ingredients for invoking extended tax demand proceedings: Allahabad High Court. *  No jurisdictional bar under section 6(2)(b) in parallel CGST SGST proceedings: Delhi High Court refuses to bypass GST appeal remedy. *  Madras High Court remits GST demand for fresh adjudication after taxpayer claims it was unaware of SCN following business closure.  

Comments

Print   |    |  Comment

PJ/Case Laws/2010-11/1074

Condonation of Delay in filing appeal

Case: Shri Rajan Bhalchandra Datar v/s Commissioner of Central Excise and Customs, Nashik
 
Citation: 2011-TIOL-72-HC-MUM-CX
 
Issue:- Whether the Appellate Authority for Industrial and Financial Reconstruction (AAIFR) was justified in condoning delay of 7 days in filing appeal by the respondents under Section 25 of the Sick Industrial Companies Act, 1989?
 
What will be the date of communication of order of BIFR to the Commissioner of the Central Excise?
 
Brief Facts:- The Board for Industrial and Financial Reconstruction (BIFR) passed an order on 05.12.2006 sanctioning a Scheme of Rehabilitation under SICA. The issue involved was the date of communication of order of BIFR to the Commissioner of the Central Excise. Notarized copy of the order of the BIFR dated 5.12.2006 was served on the Commissioner on 13.12.2006. Authenticated copy of the order dated 5.12.2006 was dispatched by the BIFR on 7.12.2006 addressed to the Aurangabad Commissionerate. The Aurangabad Commissionerate received the said order on 12.12.2006 and after considering that the petitioner’s unit did not fall under their jurisdiction, they forwarded the authenticated copy of the order dated 5.12.2006 to the Nashik Commissionerate which was received by the Nashik Commissionerate on 2.1.2007.
 
Respondent-department challenged the order of BIFR in an appeal before the AAIFR on 02.02.2007 and also prayed for condonation of delay. AAIFR held that there was sufficient cause for not filing the appeal within 45 days from the date of issue of order. And condoned the delay.
 
Petitioner-assessee filed writ petition in the High Court. A Division Bench of the High Court by its order dated 16.09.2008 set aside the AAIFR order dated 23.03.2007 and directed the AAIFR to pass fresh order after considering the points raised by the both sides.
 
Accordingly, the matter was heard afresh and by the impugned order dated 28.09.2010, the AAIFR condoned the delay of seven days in filing the Appeal beyond 45 days as the AAIFR is empowered to condone the delay upto fifteen days after 45 days from the date of communication of the order of BIFR.
 
Against this order, Petitioner has filed the present writ petition.
 
Petitioner’s Contentions:- It is contended that the impugned order has been passed by the AAIFR in gross violation of the order passed by this Court wherein specific directions were given to consider the points raised by the petitioners in their reply, however, the objections raised by the petitioners have not been considered. It is further contented that the statement made by the respondents in the application seeking condonation of delay that they were unaware of the order passed by the BIFR dated 5.12.2006 till 2.1.2007 was totally false, because notarized copy of the order was served upon the Commissioner of Central Excise, Nashik and this fact has been suppressed by the respondents. It is further contented that the AAIFR failed to consider within the statutory period of 45 days and, therefore, the AAIFR was not justified in condoning the delay.
 
Petitioner placed reliance on Pundlik Jalam Patil v/s Executive Engineer, Jalgaon [(2008) 17 SCC 448] and on Balwant Singh V.s Jagdish Singh & others [(2010) 8 SCC 685].
 
Respondent’s Contentions:- In the application for condonation of delay in filing appeal, the Department had contended that till the date of receipt of the authenticated copy of the order of BIFR, the Commissioner of Central Excise, Nashik was not aware of the order passed by the BIFR and, therefore, the appeal could not be filed within 45 days.
 
Before the High Court it was submitted that initially the appropriate authority on 23.1.2007 decided to accept the order of BIFR and thereafter on reexamination decided to contest the order of BIFR on the ground that the said order is prejudicial to the interest of the Revenue. Accordingly, the appeal was filed on 2.2.2007. These facts were not given in the application for condonation of delay.
 
With regard to the allegation of making false statement, it was contented by the Revenue that for computing the period limitation, the relevant date is the date of receiving authenticated copy of the order and not the date on which the notarized copy of the order was received.
 
Reasoning of Judgment:- The High Court perused the provisions of Section 25 of the SICA and held that there is no dispute that under Section 25 of SICA, the expression “within 45 days from the date on which the copy of the order is issued to him” means “within 45 days from the date of communication of the order”.
 
It was further held that there was no dispute that the Commissioner of Central Excise, Nashik had received notarized copy of the order of BIFR on 13.12.2006, and authenticated copy of the order of BIFR. However, the AAIFR, by accepting the contention of the petitioners held that 12.12.2006 i.e. the date on which the Aurangabad Commissionerate received the authenticated copy of the order of BIFR would be the relevant date for computing the limitation. Thus, receiving notarized copy of the order and authenticated copy looses significance once is considered to be the relevant date for computing the period of limitation for filing the appeal.
 
It was noted that the appeal was filed seven days after the expiry of 45 days. This delay of seven days could be condoned by AAIFR only if sufficient cause was shown.
 
A perusal of the order of AAIFR showed that none of the contentions of the petitioner have been considered and the AAIFR condoned the delay by making general observation.
 
The only reason given in the application seeking condonation of delay was found to be incorrect and did not constitute sufficient cause for condoning the delay, because, even if the authenticated copy was received, why the appeal could not be filed ought to have been  set out in the application seeking condonation of delay.
 
Failure to set out reasons for the delay in the application seeking condonation of delay shows complete callousness and dereliction of duty on the part of the Officer who had affirmed the application seeking condonation of delay. It is high time that appropriate action is taken against such officers perform their duties casually and without application of mind.
 
The High Court considered the contentions made by the Revenue before them in writ petition was observed that though these facts on record were not set out in the application seeking condonation of delay, the said facts cannot be ignored. These facts constitute sufficient cause for condoning the delay of 7 days.
 
It was further held that there is no doubt that the inaccurate statement made in the application seeking condonation of delay does not amount to showing any cause much less a sufficient cause for condoning the delay of seven days, in view of the material now brought on record, the order of AAIFR in condoning the delay of seven days in filling the appeal was upheld.
 
It was further held that the decision of Apex Court in Pundlik Jalam Patil v/s Executive Engineer, Jalgaon was distinguishable on facts. It was further held that the decision of the Apex Court in the case of Balwant Singh v/s Jagdish Singh & others was applicable but the facts brought before the High Court constituted sufficient cause for condoning the delay.
 
In the end, the High Court held that the inaccurate contained statement in the application seeking condonation of delay did not amount to showing sufficient cause and the AAIFR was not justified in condoning the delay without considering the inaccurate statement contained in the application seeking condonation of delay. However, on the basis of the material now placed on record, there was sufficient cause and the delay of seven days in filling the appeal deserves to be condoned.
 
Decision:- Writ petition dismissed.
 

************

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com