STATE OF GUJARAT Vs. YANTRAMAN AUTOMAC PVT

JUDGEMENT

(1.) THIS application has been filed by the State of Gujarat seeking condonation of delay of 721 days in filing the Tax Appeal. This prayer is strongly opposed by the opponent. It would, therefore, be useful and necessary to advert to relevant facts.

(2.) IN the Tax Appeal the State Government has challenged the judgment of the Gujarat Value Added Tax Tribunal (hereinafter referred to as 'the Tribunal') dated October 27, 2010. The question involved in such proceedings before the Tribunal was whether the machinery in the nature of Backho Loader, Track Excavators, Loader, Skip Steer Loader, Telesonic Handler, etc. being dealt in by the opponent -assessee as a dealer would fall under Entry 35 of Schedule II pertaining to Machinery including parts and accessories thereof used in the execution of the works contract or would more appropriately categorised as motor vehicles and fall, therefore, under Entry 87, which is a residuary entry. The consequence of this classification would be that under Entry 35 the goods would invite basic Value Added Tax at 4% as against 12.5% for goods falling under Entry 87. Another significant aspect of the matter is that the impugned decision was rendered by the Tribunal in the context of opponent -assessee's application under Section 80 of the Gujarat Value Added Tax Act, 2003 (hereinafter referred to as 'the Act'). Section 80 of the Act pertains to determination of disputed questions. Sub -section (1) thereof empowers the Commissioner, Special Commissioner, Additional Commissioner or Joint Commissioner to make an order determining the question if any arises otherwise than in proceeding before a Court, or proceedings under Section 33, 34 or 35 of the Act with respect to various categories specified in Clauses (a) to (f) of the said sub -section. To this section we would make further reference later.

(3.) SINCE the appeal presented by the State Government against the judgment of the Tribunal was belated, the present Civil Application was filed seeking condonation of delay. In such application on an affidavit filed by the Deputy Commissioner of Commercial Tax, the delay was sought to be explained in the following manner :