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KRISHAK BHARTI CO-OPERATIVE LIMITED Versus COMMISSIONER OF COMMERCIAL TAXES

2016 (7) TMI 370 - GUJARAT HIGH COURT

Condonation of delay in filing appeal before the tribunal - lapse of 8 years - bonafide circumstances - Held that:- There appears to be no malafide intention behind it since the rectification application was very much pending and therefore, the reason which has been raised for seeking condonation of delay appears to be bonafide. In addition thereto, the learned Tribunal appears to be on the wrong premise that there is no reference about the application for rectification. Before us also, an affid .....

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ent and it is settled position of law that when a substantial justice is pitted against technical consideration, the substantial justice must be given predominance and therefore, since the bonafides are appearing to be genuine, there is no likelihood of any prejudice to the department and the main reason assigned by the Tribunal is clarified by the department itself. - Matter restored before the tribunal. - TAX APPEAL NO. 181 of 2014 - Dated:- 30-6-2016 - MR. AKIL KURESHI AND MR. A.J. SHASTRI, J .....

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which is a fertilizer, liable to value added tax @ 4% and additional tax @ 1% under Entry No.19 of Schedule II of Gujarat Value Added Tax Act, 2003. The appellants are also a registered dealer of the aforesaid products under Gujarat Sales Tax Act, 1969. Alongwith local sales, the appellants are also making interstate sales and are having registered branch offices across the country. The appellants availed the input tax credit on its purchase of inputs, packing material etc as may be eligible to .....

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30.07.1994, the appellants preferred an appeal before the Assistant Commissioner (Appeals)8 under section 65 of Gujarat Sales Tax Act, 1969 on 11.10.1994. By that time, the amnesty scheme was floated by the Commissioner of Sales Tax Department vide its circular No.1189/480 dated 08.05.1991, which has provided that for pending assessment where the demand has been confirmed under section 15B of the Sales Tax Act, there shall not be levied any interest and penalty and in view of the that the appel .....

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sessment order which has been passed on 30.07.1994 for the period commencing from 01.07.1989 to 31.03.1990 is barred by limitation. However, the learned Assistant Commissioner of Commercial Tax without appreciating the submissions made by the appellants passed an order on 30.06.2004, whereby, the assessment order dated 30.07.1994 came to be upheld and simultaneously even the plea of limitation raised by the appellant came to be rejected. Since this was the position on record, on 26.07.2004 and 0 .....

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d 30.06.2004 as also an order dated 09.04.2013 passed as stated above. Though, the question of limitation was not arising, according to the appellant, however, for abundant caution, the appellant also filed an application seeking condonation of delay in preferring an appeal against the original order dated 30.06.2004. While preferring the said application for condonation of delay, it was specifically stated before the learned Tribunal that since the rectification application was very much pendin .....

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cted the application essentially on the premise that neither such application is on record, nor any noting is made on the file and therefore, in the absence of any reference to the said rectification, the Tribunal stated that it is unable to accept that such application was filed on 06.08.2004. By recording such reasons in paragraph No.6, the learned Tribunal thought it fit not to allow the condonation of delay of approximately eight years. In the background of this fact, when later on the depar .....

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present Tax Appeal. The learned counsel on behalf of the appellant stated that this was the bonafide circumstance and there was no illmotive on the part of the appellants not to prefer an appeal in time, but, since the rectification application was awaiting final disposal, there was no occasion for the appellants to prefer an appeal. Be that as it may, now since the said application is unearthed and even department has stated and confirmed that such application was filed, the reason for rejecti .....

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o be no malafide intention behind it since the rectification application was very much pending and therefore, the reason which has been raised for seeking condonation of delay appears to be bonafide. In addition thereto, the learned Tribunal appears to be on the wrong premise that there is no reference about the application for rectification. Before us also, an affidavit has been filed by Shri Prashant Pujara, Deputy Commissioner dated 25.06.2014 in which the fact of filing of application for re .....

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