' CH. ANWAAR UL HAQ (JUDICIAL MEMBER).---The titled Sales Tax appeal, has been preferred at the instance of Revenue calling in question impugned order No,13 dated 20.01.2012.
2. The above appeal is supported by an application filed by the Revenue under section 74 of the Sales Tax Act, 1990, seeking condonation of delay in filing of present second appeal. In the said application, it is stated that the first appeal order was delivered to the office of Commissioner on 16.02.2012 and limitation for filing second 'appeal was expired on 14.04.2012. It is further submitted that Employees of she Revenue went on strike which lasted till 18.04.2012, therefore, second appeal before this Tribunal could not be filed before expiry of limitation i.e, 14.04.2012. Accordingly, it is prayed that the period of delay may kindly be condoned enabling the department to get the appeal decided on merits.
3. Under Rule 13 of the ATIR Rules, 2010, where a fact which cannot be borne out by or is contrary to the record, is alleged, it shall be stated clearly and concisely by a duly sworn affidavit and shall have to be filed with the memorandum of appeal. Contrary to this Rule, the said application for condonation of delay is not supported by an Affidavit of the concerned Commissioner. Therefore, the contents of the application without supported document cannot be entertained. Even otherwise, the alleged strike of the employees started 2nd April and lasted till 18.04.2012 and if the said period is to be excluded while calculating time of limitation even then the last date for filing of appeal becomes 1st of May, 2012 whereas the present appeal was filed on 2nd of May, 2012 which is badly barred by time. Accordingly, application for condonation of delay is incompetent on both scores.
'4. Even on merits of the case, I am of the view that the impugned appellate order does not suffer from any infirmity to warrant any interference by me. The registered person filed request for adjustment of sales tax liability against income tax refund well within time of filing sales tax Return and the delay for adjustment was caused by the department. Therefore, I am inclined to maintain the order of the learned CIR(A) and also endorse his observations made in the concluding paragraph of his order.