Srikara Lakshmi Durga Agencies vs The State Of Ap
2022 Latest Caselaw 1920 AP

     HONOURABLE SRI JUSTICE C. PRAVEEN KUMAR

                                   And

         HONOURABLE SMT. JUSTICE V. SUJATHA

                Writ Petition No.6893 of 2022

ORDER:   (Per Hon'ble Smt. Justice V. Sujatha)


     The present writ petition is filed seeking issuance of a

writ of mandamus declaring the assessment order dated

22.06.2015 in Form VAT 305 in A.O.No.27693 passed by the

2nd respondent as illegal, arbitrary, contrary to the provisions

of Andhra Pradesh Value Added Tax Act, especially Rule 59

(1) (4) (ii) (b) and (d) of the VAT Rules and also contrary to the

judgment rendered in M/s. Sri Balaji Flour Mills Case v.

Commercial Tax Officer (52 APSTJ 85) and consequently to

set aside the assessment order.

2. The facts of the case, in brief, are that the petitioner is a

proprietrix of the firm in the name and style of M/s. Srikara

Lakshmi Durga Agencies, Amalapuram, under the rolls of

Commercial Tax Officers, Amalapuram-the 3rd respondent

herein, registered under the Andhra Pradesh Value Added Tax

Act, 2005 (APVAT Act) vide TIN 37841120290. It is engaged in

the business of purchase and supply of water bottles and soft

drinks from the retailers, particularly, M/s. Sarvaraya Sugars

etc. The 2nd respondent has passed the assessment of VAT

under Form VAT 305 dated 22.05.2015 under A.O.No.27693

for the period July, 2012 to September, 2014 and imposed 2 CPK, J & VS, J

W.P.No.6893 of 2022

the tax liability of Rs.8,42,288/-, which is completed by the

orders of the 4th respondent-the Deputy Commissioner of

Commercial Tax, Kakinada dated 11.09.2014.

3. Heard the learned counsel for the petitioner and the

learned standing counsel appearing on behalf of the

respondents.

4. The case of the petitioner is that the said assessment

order dated 28.06.2015 was communicated to the petitioner,

pursuant to which, the petitioner submitted a detailed

explanation requesting the assessing authority to grant input

tax basing on the transaction that the petitioner did not

collect any taxes from the retailers. But the same was not

considered and an assessment order dated 28.06.2015 came

to be passed, which was confirmed in the appeal by the 5th

respondent vide Endorsement No.REG/VSP/VAT/ 33/15-16,

dated 6-11-2015. Challenging the same, the petitioner filed

W.P.No.40417 of 2015. The said writ petition was dismissed

as withdrawn on 25.01.2015 with liberty to file the writ

petition afresh questioning the assessment order. However,

after a lapse of nearly seven years, the present writ petition is

filed questioning the assessment order.

5. In the subject matter of the case, the short question

that falls for consideration herein is whether the writ petition

questioning the assessment order can be maintained, after a

lapse of seven years, even if a liberty is given to file a fresh 3 CPK, J & VS, J

W.P.No.6893 of 2022

writ petition while permitting the petitioner to withdraw the

writ petition?

6. A perusal of the material on record would show that the

assessment order was passed by the 2nd respondent way back

in the year 2015. Challenging the same, the petitioner

preferred appeal before the 5th respondent-Appellate

Authority. The said appeal was rejected at the stage of

admission vide Endorsement No.REG/VSP/VAT/33/15-16,

dated 6.11.2015. It also appears that challenging the said

endorsement, the petitioner filed W.P.No.40417 of 2015,

which was dismissed as withdrawn with liberty to file a writ

petition afresh questioning the assessment order. Though a

liberty was given to file a fresh writ petition to question the

assessment order after lapse of seven years, the petitioner

filed the present writ petition challenging the assessment

order dated 22.06.2015. No explanation is forthcoming from

the petitioner as to why he kept quiet all these years without

filing the present writ petition.

7. In Union of India and others v. N. Murugesan etc.,1

the Honourable Supreme Court held as under:

"......the principles governing delay, laches and acquiescence are overlapping and interconnected on many occasions. They have their distinct characters and distinct elements. One can say that delay is the genus to which laches and acquiescence are species. Similarly, laches might be called a

(Civil Appeal No.2491-2492 of 2021, dated 07.10.2021) 4 CPK, J & VS, J

W.P.No.6893 of 2022

genus to a species by name acquiescence. These principles are common law principles, and perhaps one could identify that these principles find place in various statutes which restrict the period of limitation and create non-consideration of condonation in certain circumstances. They are bound to be applied by way of practice requiring prudence of the Court than of a strict application of law. The underlying principle governing these concepts would be one of estoppel. The question of prejudice is also an important issue to be taken note of by the Court......."

"........Laches involves unreasonable delay or negligence in pursuing a claim involving an equitable relief while causing prejudice to the other party. It is neglect on the part of a party to do an act which law requires while asserting a right, and therefore, must stand in the way of the party getting relief or remedy......."

8. In the judgment of the Hon'ble Supreme Court referred

above, the Apex Court, while dealing with the extraordinary

and discretionary nature of relief under Article 226 of the

Constitution of India, categorically held that the principle is

to be extended much more when an element of undue delay,

laches and acquiescence is involved. The Hon'ble Supreme

Court, in answer to the said principle, after referring to UP

Jal Nigam v. Jaswanti Singh2, held as under:-

"8. Our attention was also invited to a decision of this Court in State of Karnataka v. S.M. Kotrayya [(1996) 6 SCC 267: 1996 SCC (L&S) 1488]. In that case the respondents woke up to claim the relief which was granted to their colleagues by the Tribunal with an application to condone the delay. The Tribunal condoned the delay. Therefore, the state approached this Court and this Court after considering the matter observed as under: (SCC p. 268)

(2006) 11 SCC 464 5 CPK, J & VS, J

W.P.No.6893 of 2022

"Although it is not necessary to give an explanation for the delay which occurred within the period mentioned in sub- sections (1) or (2) of Section 21, explanation should be given for the delay which occasioned after the expiry of the aforesaid respective period applicable to the appropriate case and the Tribunal should satisfy itself whether the explanation offered was proper. In the instant case, the explanation offered was that they came to know of the relief granted by the Tribunal in August 1989 and that they filed the petition immediately thereafter. That is not a proper explanation at all. What was required of them to explain under sub-sections (1) and (2) was as to why they could not avail of the remedy of redressal of their grievances before the expiry of the period prescribed under sub-section (1) or (2). That was not the explanation given. Therefore, the Tribunal was wholly unjustified in condoning the delay."

9. Similarly in Jagdish Lal v. State of Haryana [(1997) 6 SCC 538: 1997 SCC (L&S) 1550] this Court reaffirmed the rule that if a person chose to sit over the matter and then woke up after the decision of the Court, then such person cannot stand to benefit. In that case it was observed as follows: (SCC p. 542).

"The delay disentitles a party to discretionary relief under Article 226 or Article 32 of the Constitution. The appellants kept sleeping over their rights for long and woke up when they had the impetus from Virpal Singh Chauhan case [Union of India v. Virpal Singh Chauhan, (1995) 6 SCC 684 : 1996 SCC (L&S) 1 : (1995) 31 ATC 813] . The appellants desperate attempt to redo the seniority is not amenable to judicial review at this belated stage."

9. Having regard to the facts and circumstances of the

case and keeping in view the law laid down by the Hon'ble

Supreme Court in the case referred to supra, this court is of

the view that there is abnormal delay and laches on the part

of the petitioner in filing the writ petition. Further, the

petitioner failed to explain as to why the delay has occurred

in filing the writ petition. Ergo, on that score alone, the writ

petition is liable to be dismissed as not maintainable.

Accordingly, the writ petition is dismissed. There shall

be no order as to costs.

                              6                  CPK, J & VS, J

                                             W.P.No.6893 of 2022

As a sequel thereto, miscellaneous petitions, if any,

shall stand closed.

_________________________ C. PRAVEEN KUMAR, J

________________ V. SUJATHA, J

Date: 21.04.2022 Ksn