dismissed as time-barred
Case Title | Kaydee Audio Vision Pvt Ltd vs State of U.P & Others. |
Court | Allahabad High Court |
Honorable Judges | Justice Saumitra Dayal Singh |
Citation | 2022 (5) GSTPanacea 348 HC Allahabad Writ Tax No. 776 of 2022 |
Judgement Date | 31-May-2022 |
Council for Petitioner | Praveen Kumar |
Council for Respondent | C.S.C.. Jagdish Mishra |
Section | Section 129(3) of the Act |
In Favour of | The matter is remitted to the appellate authority to decide the appeal afresh |
The Allahabad High Court bench of Justice Saumitra Dayal Singh has held that since the circumstances are unique and not such as may be blamed on the assessees, the State would not raise any objection to limitation if the appeal/s is/are filed by aggrieved assessees, within reasonable time.Accordingly, the present writ petition is allowed. The appellate order dated 22.11.2021 is set aside. The matter is remitted to the appellate authority to decide the appeal afresh, on merits without raising any objection as to limitation.
dismissed as time-barred
Facts of the Case
Briefly, it may be noted, earlier, the petitioner had been visited with an order passed under Section 129(3) of the Act dated 09.02.2018 providing for imposition of tax Rs. 5,35,335/- and equal amount of penalty on a transaction on import of goods
At that stage, the petitioner had approached this Court and filed Writ Tax No. 215 of 2018, wherein the petitioner raised challenge to the penalty, amongst others on the ground – the requirement of e-way bill to accompany the goods was not in place in the State of U.P., at the relevant time
Though, the interim order does not make any recital of such ground, a Division Bench of this Court had passed the below quoted order on 22.02.2018
It is also on record that similar orders were passed by the Division Bench of this Court, in other cases, as well
At the same time, in another matter pertaining to another assessee, with which the petitioner had no concern namely, M/S Kay Pan Fragrance Pvt. Ltd., the revenue authorities assailed the interim order passed by this Court, before the Supreme Court, in Special Leave Petition (C) No. 25291 of 2019 (State of U.P. & Ors. Vs. M/S Kay Pan Fragrance Pvt. Ltd). It now transpires, in those proceedings, the State filed an affidavit in compliance of certain orders passed by the Supreme Court dated 08.11.2019 including therein a list of 284 writ petitions before this Court that had been disposed of on the date of compliance made by the State (before the Supreme Court). Further, a list of 306 cases that were pending on the date of compliance thus made by the revenue authorities, was also provided
In such circumstances, vide its order dated 22.11.2019, the Supreme Court disposed of the above described case State of U.P. & Ors. Vs. M/S Kay Pan Fragrance Pvt. Ltd., 2019 UPTC (103) 1373. In that, the Supreme Court set aside all orders of this Court, of which description had been given in the compliance affidavit filed by the revenue authorities and also it disposed of all pending writ petitions, of which description was given in that compliance affidavit filed by the State revenue authorities.
At that stage, the petitioner preferred an appeal against the original order dated 09.02.2018 passed under Section 129(3) of the Act, creating the demand of tax and penalty. That appeal was filed on 17.06.2020. It has been dismissed as time barred by order dated 22.11.2021
dismissed as time-barred
Court Held
Considering the facts as recorded, held that be that as it may, this Court cannot turn a blind eye to the harsh facts and their consequence, as have been noted above.
Accordingly, a query was put to the learned Chief Standing Counsel, today, if the State would waive its objection as to limitation, in these circumstances. Sri K.R. Singh, learned Chief Standing Counsel has fairly stated,
since the circumstances are unique and not such as may be blamed on the assessees, the State would not raise any objection to limitation if the appeal/s is/are filed by aggrieved assessees, within reasonable time
Accordingly, the present writ petition is allowed. The appellate order dated 22.11.2021 is set aside. The matter is remitted to the appellate authority to decide the appeal afresh, on merits without raising any objection as to limitation. That exercise may be completed, within a period of three months from today
dismissed as time-barred
Analysis of the Judgement
Be that as it may, this Court cannot turn a blind eye to the harsh facts and their consequence, as have been noted above. Accordingly, a query was put to the learned Chief Standing Counsel, today, if the State would waive its objection as to limitation, in these circumstances. Sri K.R. Singh, learned Chief Standing Counsel has fairly stated, since the circumstances are unique and not such as may be blamed on the assessees, the State would not raise any objection to limitation if the appeal/s is/are filed by aggrieved assessees, within reasonable timein M/S Kay Pan Fragrance Pvt. Ltd. (supra) and clearly communicate to them a gist of this order, giving them an opportunity to file an appeal, if any, within ninety days from receipt of that communication, against the individual order/s existing against that individual assessee
Any appeal proposed to be filed by an aggrieved assessee may disclose the date of service of notice served in compliance of this order. The limitation to file the appeal be computed accordingly
Also, adequate communication of this order be made to all first appellate authorities such that appeals (pending and to be filed) by assessees affected by the order of M/S Kay Pan Fragrance Pvt. Ltd. (supra) may be entertained without raising any objection as to limitation.
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