Karnataka High Court
M/S A A Logistics vs State Of Karnataka on 13 December, 2023
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NC: 2023:KHC-D:14625
WP No. 105894 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 13TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
WRIT PETITION NO. 105894 OF 2023 (T-RES)
BETWEEN:
M/S A. A. LOGISTICS,
SHOP NO.31, APMC YARD,
DAM ROAD, HOSPET-583203,
(REPRESENTED BY SRI K. VISHWANATHA
GOWDA, PROPRIETOR)
...PETITIONER
(BY SRI N. P. VIVEKMEHTA, ADVOCATE)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY ITS FINANCE SECRETARY,
GOVERNMENT OF KARNATAKA,
VIDHANASOUDHA, AMBEDKAR VEEDHI,
BENGALURU-560001.
2. THE COMMISSIONER OF COMMERCIAL TAXES
MOHANKUMAR VANIKE TERIGE KARYALAYA-01,
B SHELAR
KALIDAS ROAD, GANDHI NAGAR,
Digitally signed by
MOHANKUMAR B BENGALURU-560009.
SHELAR
Date: 2023.12.19
12:21:38 +0530
3. THE JOINT COMMISSIONER OF COMMERCIAL
TAXES, (APPEALS) DAVANGERE DIVISION,
COMMERCIAL TAX BUILDING ,
DEVARAJ URS BADAVANE,
DAVANGERE-583101.
4. THE COMMERCIAL TAX OFFICER.
(AUDIT AND RECOVER)-2,
CHITWADGI, HOSPET-583 211.
...RESPONDENTS
(BY SRI. SHIVAPRABHU HIREMATH, AGA FOR RESP. NO.1 TO 4)
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NC: 2023:KHC-D:14625
WP No. 105894 of 2023
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE WRIT OF
CERTIORARI OR WRIT IN THE NATURE OF CERTIORARI QUASHING
THE APPEAL ORDER PASSED BY THE RESPONDENT NO. 3 UNDER
SECTION 62(6) OF THE KVAT ACT DATED 07-09-2020 FOR THE
PERIOD 2008-09 AT ANNEXURE-F BEARING NO. KVAT/AP/182/2015-
16 IN SO FAR AS THE PETITIONER IS CONCERNED AND ISSUE WRIT
OF MANDAMUS OR WRIT IN THE NATURE OF MANDAMUS DIRECTING
THE RESPONDENT NO. 3 TO ADMIT THE APPEAL AND TO PASS THE
ORDERS ON MERITS, IN VIEW OF THE LAW DECLARED BY THIS
HON'BLE COURT AND ISSUE WRIT OF MANDAMUS OR WRIT IN THE
NATURE OF MANDAMUS DIRECTING THE RESPONDENT NO. 3 TO
CONDONE THE DELAY IN FILING THE APPEAL PETITIONER FOR THE
ASSESSMENT PERIOD 2008-09 AND DECIDE THE CASE ON MERITS
AND ISSUE WRIT OF MANDAMUS OR WRIT IN THE NATURE OF
MANDAMUS DIRECTING THE RESPONDENT NO. 3 TO GRANT AN
OPPORTUNITY TO THE PETITIONER AND DECIDE THE CASE ON
MERITS.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
When an appeal under Section 62(6)(A) of the Karnataka
Value Added Tax Act, 2003 (for short, 'the Act, 2003') is
dismissed as barred by limitation prescribed under the Act,
whether a writ petition can be entertained, and a direction can
be issued to the authority to decide the appeal on merits by
condoning the delay.
2. The admitted fact is the appeal before the first
appellate authority-Joint Commissioner Commercial Taxes is
not filed within 210 days as allowed under the Act. The relevant
provision of the Act, 2003 provides an appeal before the Joint
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Commissioner, Commercial Taxes under Section 62(3) of the
Act, 2003 appeal has to be filed within 30 days from the order.
The provision also provides that a delay of 180 days at the
maximum can be condoned and thereafter there is no provision
to condone the delay. Since, the appeal was filed beyond 210
days it is dismissed for barred by limitation.
3. The petitioner is before this Court to urge the
contention that though, the statutory period is prescribed to
entertain an appeal and further limitation is imposed on the
appellate authority not to condone the delay beyond a certain
period, the petitioner is before this Court on the premise that in
exercise of power conferred under Article 226 of the
Constitution of India for the valid and sufficient reasons, the
Court can condone the delay and entertain the petition or direct
the authority to consider the claim on merits by condoning the
delay.
4. Learned counsel for the petitioner Sri N.P.Vivek Mehta
would submit that in catena of decisions this Court has
entertained the writ petition though the statutory period to file
an appeal has expired. Learned counsel has relied on the
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judgment of this Court in W.A.No.100412/2023,
W.P.No.49560/2016, W.P.No.25153/2018.
5. Learned AGA Sri Shivaprabhu Hiremath would submit
that in terms of the law laid down by the Hon'ble Apex Court in
Assistant Commissioner (CT) LTU, Kakinada & others vs.
Glaxo Smith Kline Consumer Health Care Limited, AIR 2020 SC
2819 and National Spot Exchange Limited vs. Anil Kohli,
Resolution Professional For Dunar Foods Limited, (2022) 11
SCC 761, the Apex Court has held that in exercise of its power
under Article 226 of the Constitution of India, the Court has no
power to extend the period of limitation prescribed under the
Act, if any, for filing an appeal.
6. This Court has considered the contentions raised at the
bar.
7. In the case of Glaxo Smith Kline's referred to supra,
the precise question that was answered by the Hon'ble Apex
Court was whether the Court exercising jurisdiction under
Article 226 of the Constitution of India has the power to extend
the period of limitation, in case, the appeal is not filed. The
Hon'ble Apex Court after analysing the provisions of Andra
Pradesh Value Added Tax Act has concluded that once the
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maximum statutory period prescribed under the Act expires,
the Court in exercising jurisdiction under Article 226 of the
Constitution of India has no power to extend the period of
limitation.
8. In the case of National Spot Exchange's supra in
paragraph No.14, the Hon'ble Apex Court has held as under :
"It is true that in a given case there may arise a
situation where the applicant/appellant may not be in a
position to file the appeal even within a statutory period of
limitation prescribed under the Act and even within the
extended maximum period of appeal which could be
condoned owing to genuineness viz. illness, accident, etc.
However, under the statute, Parliament has not carved out
any exception of such a situation. Therefore, in a given
case, it may cause hardship, however, unless Parliament
has carved out any exception by a provision of law, the
period of limitation has to be given effect to. Such powers
are only with Parliament and the legislature. The courts
have no jurisdiction and/or authority to carve out any
exception. If the courts carve out an exception, it would
amount to legislate which would in turn might be inserting
the provision to the statute, which is not permissible."
9. By referring to the aforementioned decisions, this
Court is of the view that issue involved in this case is squarely
covered in terms of the Judgments of the Hon'ble Apex Court
referred to above. Since the Apex Court has taken a view that
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there is no power to condone the delay beyond the period of
limitation prescribed under the Act, the judgments relied on by
the petitioner are of no avail to the petitioner.
For the aforesaid reasons, petition is dismissed.
Sd/-
JUDGE
