Ald Automotive Private Limited vs The Additional Commissioner Of ...
2022 Latest Caselaw 3987 Kant

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 9TH DAY OF MARCH, 2022

                         PRESENT

           THE HON'BLE MRS.JUSTICE S.SUJATHA

                           AND

THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

                     S.T.A.No.10/2021

BETWEEN :

ALD AUTOMOTIVE PRIVATE LIMITED
A COMPANY REGISTERED UNDER
THE PROVISIONS OF THE COMPANIES
ACT, 1956, HAVING ITS REGISTERED
OFFICE AT UNIT NO.1802,
TOWER-A OF PENINSULA BUSINESS PARK
GANAPATRAO KADAM MARG
LOWER PAREL, MUMBAI-400013.

ALSO HAVING OFFICE AT P.B.NO.11635
NARIMAN POINT, 13TH FLOOR
MAKER CHAMBER-IV, MUMBAI-400021.

REP HEREIN BY ITS
ASSISTANT MANAGER Mr. BABU B.R.             ...APPELLANT

        (BY SRI T.SURYANARAYANA, SENIOR COUNSEL A/W
                 SMT.TANMAYEE RAJKUMAR, ADV.)

AND :

THE ADDITIONAL COMMISSIONER
OF COMMERCIAL TAXES,
(ZONE) - I, BENGALURU,
6TH FLOOR, VTK-1
VANIJYA THERIGE KARYALAYA
GANDHI NAGAR,
                          -2-



BENGALURU-560009.                         ...RESPONDENT

           (BY SRI JEEVAN J. NEERALGI, AGA.)

      THIS STA IS FILED UNDER SECTION 66(1) OF THE KVAT
ACT, 2003 AGAINST THE ORDER DATED 11.01.2018 PASSED IN
No.ZAC-1/BNG/KVAT/SMR-03/2015-16 ON THE FILE OF THE
ADDITIONAL COMMISSIONER OF COMMERCIAL.TAXES, ZONE I,
GANDHINAGAR, BENGALURU, BY SETTING ASIDE THE
REVISION ORDER BEARING No.JCCT(ADMN.)/DVO-1/SMR/CR-
06/13-14 DATED 27.02.2015 PASSED BY FRA ALONGWITH
REASSESSMENT ORDERS DATED 23.09.2009 PASSED FOR THE
TAX PERIODS FROM APRIL 2005 TO MARCH 2008 AND
RE-ASSESSMENT ORDERS DATED 01.06.2010 PASSED FOR
THE TAX PERIODS FROM APRIL 2008 TO MARCH 2009 AND THE
MATTER IS REMANDED BACK TO THE PRESCRIBED
AUTHORITY FOR RE-DOING THE RE-ASSESSMENT ORDERS
AFRESH IN THE LIGHT OF THE ABOVE OBSERVATION.

      THIS APPEAL COMING ON FOR ORDERS, THIS DAY,
S. SUJATHA, J., DELIVERED THE FOLLOWING:

                    JUDGMENT

This appeal is filed under Section 66(1) of the

Karnataka Value Added Tax Act, 2003 ('Act' for short)

challenging the order dated 11.01.2018 passed by the

Additional Commissioner of Commercial Taxes, Zone - I,

Gandhinagar, Bengaluru, wherein the Additional

Commissioner exercising powers under Section 64(1) of

the Act has set aside the re-assessment orders relating

to the tax periods April 2005 to March 2008 and April

2008 to March 2009 dated 23.09.2009 and 01.06.2010

respectively and remanded the matter to the Prescribed

Authority for re-doing the re-assessment orders afresh.

2. This appeal is filed with the delay of 1217

days. As such, I.A.No.1/2021 is filed seeking

condonation of the said delay of 1217 days in filing the

appeal.

3. Learned Senior counsel Sri. T.

Suryanarayana appearing for the appellant - assessee

submitted that subsequent to the order of remand

passed by the Additional Commissioner on 11.01.2018,

the appellant was under a bonafide belief that he could

satisfy the Authority on the allowability of the input tax

credit. However, fresh re-assessment orders were

passed on 25.11.2020 and 27.11.2020 for the tax

periods in question disallowing the input tax credit

claimed by the appellant in the revised returns filed

beyond six months. As such, rectification applications

were filed before the Assessing Officer, which came

to be rejected vide order dated 14.12.2020, against

which W.P.No.607/2021 was filed by the appellant

before this Court on 23.12.2020 challenging the

assessment orders as well as rectification order. The

Writ Court vide order dated 27.01.2021 had set aside

the order dated 14.12.2020 rejecting the applications

filed by the assessee and remanded the matter to the

Assessing Officer for its reconsideration. At that time,

after preparing and filing the writ petition, the appellant

was advised to challenge the order dated 11.01.2018.

The said delay caused is due to the aforesaid bonafide

reasons and not due to negligence.

4. Learned Senior counsel placing reliance on

the judgment of Hon'ble Apex Court in the case of

Collector, Land Acquisition, Anantnag and Another

vs Mst. Katiji and Others reported in (1987) 2 SCC

107 submitted that the Hon'ble Apex Court has laid

down the principles in considering the case for

condoning the delay. In the light of said decision, a

liberal and justice oriented approach has to be taken.

Nextly, it was argued that there is no adversary

litigation, no normal parameters set down under the

Limitation Act, 1963 could be made applicable to the

tax matters. Learned Senior counsel argued that the tax

being paid in the matter related to the refund or claim of

income tax credit, there is no revenue loss. Hence,

condoning the delay of 1217 days in filing the appeal

would not prejudice the rights of revenue. In support of

his contentions, the following judgments were referred

to:

(i) N. Balakrishnan vs. M. Krishnamurthy [(1998) 7 SCC 123];

(ii) Senior Bhosale Estate (HUF) vs. The Assistant Commissioner of Income Tax [Civil Appeal Nos. 6671-6676/2010];

(iii) Karnataka Forest Development Corpn. Ltd. vs. Assistant Commissioner of Income-Tax (TDS) Circle 11(3), Bangalore [(2011) 196 Taxman 445(Karnataka)].

5. Referring to these judgments, it is submitted

that no different yardstick could be adopted to the

private litigant compared with the State. Learned Senior

Counsel further submitted that since no statement of

objection is filed by the revenue, the delay has to be

condoned and the matter has to be heard on merits.

6. Learned Additional Government Advocate

appearing for the revenue refuting the arguments

advanced by the learned Senior counsel for the

appellant submitted that the affidavit filed by the

appellant is self-contradictory. Having admitted the

filing of writ petition before this Court on 23.12.2020,

no different stand would be taken in filing this appeal is

concerned, the appellant having suffered in the

consequential re-assessment orders, now cannot

challenge the order of the Revisional Authority at this

belated stage. Accordingly, seeks for dismissal of

interlocutory application and consequently the appeal.

7. We have carefully considered the

submissions made by the learned counsel appearing for

the parties and perused the materials on record.

8. As submitted in the affidavit and reiterated

by the learned Senior counsel for the appellant, the

sufficient cause shown appears to be the legal advice

taken while challenging the consequential re-

assessment order in writ petition. As could be seen, the

Additional Commissioner of Commercial Taxes has

passed the order on 11.01.2018 remanding the matter

to the prescribed authority for reconsideration. The

explanation offered that the appellant was under the

bonafide belief that it would satisfy the prescribed

authority to allow the input tax credit itself is manifestly

misconceived. The appellant accepting the order of the

Addl. Commissioner of Commercial Taxes has

participated before the prescribed authority pursuant to

the remand made by the Addl. Commissioner without

raising any grouse against the order of the Addl.

Commissioner. The prescribed authority having passed

the consequential orders and the appellant being

aggrieved by the same, has filed the rectification

applications unsuccessfully and thereby filed the writ

petition challenging the rectification order and the

consequential reassessment order. The aforesaid

aspects would denote that the assessee indeed had not

chosen to challenge the order of the Addl.

Commissioner. Merely for the reason that a legal advice

was given to the appellant while preferring the writ

petition before this Court, the appeal cannot be

entertained with an inordinate delay of 1217 days in

filing the appeal.

9. At this juncture, it would be apt to refer to

the judgment relied upon by the learned Senior counsel

for the appellant in the case of Collector, Land

Acquisition, Anantnag, supra. The Hon'ble Apex Court

has considered the delay of only 4 days in filing the

appeal by the State against enhancement amount of

compensation for acquisition of land for public purpose.

The High Court having dismissed the appeal on hyper-

technical ground of bar of limitation with reference to

Section 23 of the Land Acquisition Act, 1987 has held

that a liberal approach has to be adopted, to apply law

in a meaningful manner which serves the ends of

justice.

10. In the case of N. Balakrishnan, supra, the

Hon'ble Apex Court in the context of litigant engaging

the service of the learned counsel for making the motion

to set aside the ex-parte decree but the same not having

been done and the litigant venting his grievance by

claiming compensation against such learned counsel for

causing delay of 883 days in filing the application, has

- 10 -

observed that the conduct of the appellants therein does

not on the whole, warrant to castigate him as an

irresponsible litigant. It is further observed that

condonation of delay is left to the discretion of the

Court. Section 5 of the Limitation Act, 1963, does not

say that such discretion can be exercised only if the

delay is within a certain limit.

11. In the case of Karnataka Forest

Development Corpn. Ltd. supra, while considering the

appeal filed by the Government Company in condoning

the delay of 310 days, the Hon'ble Division Bench of this

Court while considering the approach of the Tribunal in

not condoning the delay of 310 days has observed that

the reason given by the Tribunal for not condoning the

delay of 310 days is unsustainable in law.

12. Similarly, in the case of Senior Bhosale

Estate, supra, the sufficient cause shown was that the

appellants therein had no knowledge of passing of the

- 11 -

order on 29.12.2003 until June 2008 which fact was

not disputed. In that context, the delay of 1754 days

was condoned as the appellants therein were confronted

with auction notices in June 2008 issued by the

competent authority.

13. In the light of these judgments, we have

analysed the case on hand. With great respect, that

none of the aforesaid judgments would come to the aid

of the appellant since it is not the case of the appellant

that he was oblivious of the order dated 11.01.2018

passed by the Addl. Commissioner of Commercial Taxes

indeed as mentioned herein above, in compliance with

the said order, the appellant has participated in the

proceedings before the prescribed authority and

suffered an order and challenged the same in the writ

petition.

14. The arguments advanced by the learned

Senior counsel that the normal parameters of the

- 12 -

Limitation Act, 1963 would not be applicable to the tax

matters cannot be countenanced.

15. The period prescribed under Section 5 of the

Limitation Act, 1963 though may not be applicable to

the tax matters, since the same is prescribed under the

statute but the parameters set down for condonation of

delay cannot stand on different footing.

16. It is significant to observe that the

controversy may not be relating to the collection of tax

but the claim of input tax credit would certainly has

some effect on the revenue. It cannot be construed as

''No revenue loss" as canvassed by the learned counsel

for the appellant. Compared to the Government, Private

litigant stands on a better pedestal in taking a decision

and filing the appeal before the Court. Merely for the

reason that in the appeal filed by the Government delay

is condoned, the same yardstick cannot be applied

blindly but requires to be examined having regard to the

- 13 -

facts and circumstances of the case. No doubt, delay of

1754 days has been condoned by the Hon'ble Apex

Court in the case of Senior Bhosale Estate, supra, but

the same is, on considering the satisfactory explanation

offered or the cause shown for the delay i.e., it depends

on the facts and circumstances of the case, there is no

hard and fast rule for condonation of delay. It is the

discretionary power vested with the Court, to be

exercised judiciously having regard to the facts and

circumstances of the case. In this regard, this Court

finds it apt to refer to the judgment of the Hon'ble Apex

Court in the case of Esha Bhattacharjee vs

Mg.Commit. of Raghunathpur Nafar reported in

(2013) 12 SCC 649, wherein the Hon'ble Apex Court

has distinguished the ordinary delay and inordinate

delay and has summarized the legal principles as

under:

- 14 -

"21.8 viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

21.9 ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

21.10        x) If the explanation offered is
concocted    or   the    grounds     urged   in    the

application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

- 15 -

22.1 a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.

22.2 b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.

22.3 c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.

22.4 d) The increasing tendency to perceive delay as a non- serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters."

- 16 -

17. In the light of the said decision, the

inordinate delay of 1217 days in the background of the

facts narrated above would certainly come within the

purview of Para No.21.8(viii) which cannot be condoned

with the liberal approach accepting the cause shown as

stated above.

18. In our considered opinion, no ground is

found to condone the inordinate delay of 1217 days in

filing the appeal. Accordingly, I.A.No.1/2021 is

dismissed. Resultantly, the Sales Tax Appeal stands

dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

PMR/SSD