TMI Blog2018 (9) TMI 808X X X X Extracts X X X X X X X X Extracts X X X X ..... ntial justice has to be done to the parties - When cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Admittedly, in the present case, the delay is 288 days after deducting 210 days of delay, it would be 78 days in filing the appeal. The present petitioner explained the delay on the ground of illness and has made out exceptional category to exercise the power under Article 226 of the Constitution of India. Delay condoned - matter is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ney much less the one claimed in the form of Tax under the KVAT Act. Accordingly, the petitioner has been promptly filing the monthly returns in Form Vat- 100 declaring the turnover and the tax liability as NIL , from time to time. The same has been followed by the petitioner right from its inception and the Commercial Tax Department has also accepted the stand and the practice of the petitioner. The 7th respondent concluded the assessment of the petitioner for the tax period 2010-11, vide proceedings of the respondent No.7 dated 29.08.2016. 3. The petitioner further submits that for the tax period from April 2010 to March2011, the first respondent issued a proposition notice to the petitioner under Section 39(1), 36 and 72(2) of the KV ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hence present writ petition is filed. 4. I have heard the learned counsel for the parties to the lis. 5. Sri. D.L.N. Rao, learned senior counsel for the petitioner contended that the impugned order passed by the Appellate Authority is erroneous and contrary to material on record. He would further contend that the appellate authority ought not to have dismissed the appeal on the technical ground of delay instead decide the matter on merits. Therefore, he sought to allow the writ petition. 6. Per contra, Sri. T.K.Vedamurthy, learned AGA appearing for the respondents 1 to 4, 6 and 7 contended that in terms of Provisions 62(3) of Karnataka Value Added Tax, 2003, the appellate authority may admit an appeal preferred after the period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority can condone the delay up to 30+180=210 days but cannot condone the delay beyond 210 days. 10. The fact remains that when the right of the parties are involved, this Court exercising powers under Sec. 226 and 227 of Constitution of India can condone the delay . It is relevant to note that the rights of the parties involved in respect of reassessment order which amounts to ₹ 26,15,74,320/-, the appellate Court cannot dismiss the appeal on the ground of technicality. Substantial justice has to be done to the parties. When cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. It must be grasped that judiciary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the service provider, can be included for the purpose of computation of the service tax or not. We do not propose to express any further view on the said aspects in view of the order which we may pass herein after, but suffice it to observe that in view of the decision of the Delhi High Court, there was a strong case on merits on the part of the petitioner to be considered by taxing authority. Unfortunately the decision of the Delhi High Court though was specifically brought to the notice of the original authority in the reply to the show case notice, in the impugned order of the original authority, there is no reference whatsoever. Under these circumstance, we find that the case may fall in the exceptional category for exercise of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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