Madras High Court
M/S.Kesaav Ply N Laminates vs The Assistant Commissioner (St) on 3 March, 2021
W.P.No.15679 of 2020 etc. batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.03.2021
CORAM
THE HONOURABLE DR. JUSTICE ANITA SUMANTH
W.P.Nos. 15679, 15683, , 17833, 17838, 17840, 17844, 17926, 17927, 17525,
17709 , 17710, 17712, 17714, 17717, 17720, 14720, 14722, 10496, 10533,
10536, 10729, of 2020 and 120, 4784 and 4789 of 2021
and WMP Nos.19522, 19526, 22122, 22120, 22118, 22128, 22219, 22216,
22217, 22218, 22220, 22221, 21711, 22440, 21947, 21948, 21950, 21954,
21955, 21961, 18290, 18289, 12775, 12773, 12793, 12795, 12789, 12790,
13025, 13028 of 2020, 172, 173, 5410 and 5413 of 2021
W.P.No.15679 of 2020:
M/s.Kesaav ply N Laminates,
Represented by its Partner
Mr.S.Kamalakannan
No.16/1, Periathambi Street,
Choolai, Chennai – 600 112. …. Petitioner
Vs.
The Assistant Commissioner (ST)
Choolai Assessment Circle,
No.10, Greams Road,
II Floor, Palaniappa Maligai,
Chennai – 600 006. …. Respondent
PETITION filed under Article 226 of the Constitution of India praying
for the issuance of Writ of Certiorarified Mandamus calling for the impugned
proceedings of the respondent in TIN No.33540501915/2014-2015 dated
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W.P.No.15679 of 2020 etc. batch
19.3.2019 and the subsequent impugned proceedings of the respondent in
TIN/33540501915/2014-2015 dated 22.7.2020 and quash both the orders as
passed in violation of principles of natural justice and against the provisions of
the TNVAT Act and further direct the respondent to pass a fresh assessment
order after granting reasonable opportunity to the petitioner.
W.P.Nos. For Petitioner(s) For Respondent(s)
15679 and 15683 of Mr.P.Rajkumar
17833, 17838, 17840, Mr.S.Sathya
17844 of 2020 Narayananan
17926, 17927, Mr.S.Rajasekar
17525 of 2020 Mr.Mohammed
Shaffiq,
120, of 2021
17709 , 17710, 17712, Mr.Aditya Reddy Special Government
17714, 17717, 17720 Pleader
of 2020 Assisted by
Mr.ANR.Jayaprathap,
14720 & 14722 of Mr.K.M.Malarvanna
2020 n Government Advocate
10496, 10533, 10536, Mr.V.Srikanth
& 10729 of 2020
4784 and 4789 of Mr.R.Senniappan
COMMON ORDER
All these Writ Petitions challenge orders of assessment passed in terms
of the provisions of the Tamil Nadu Value Added Tax Act, 2006 (in short
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W.P.No.15679 of 2020 etc. batch
‘Act’), and have been filed beyond the time provided under the Act for filing
of a statutory appeal. The provisions of Section 51 of the Act provide for the
filing of a first appeal before the Appellate Assistant Commissioner/Deputy
Commissioner (Appeals) within a period of 60 days from date of receipt of an
order of assessment, with a further period of 30 days provided, during which
the concerned assessee may seek condonation of delay in filing of the appeal.
If the appellate authority is so convinced of the reasons adduced for the delay,
he is, at his discretion, entitled to condone such delay, upto only a period of 30
days. To clarify, the present Writ Petitions challenge orders of assessment, and
have been filed beyond the period of 90 (60 + 30) days provided in terms of
Section 51 of the Act from the date of receipt of the orders by the petitioners.
2. In W.P.Nos.15679 and 15683 of 2020, orders of assessment have
been passed on 19.03.2019 (W.P.No.15679 of 2020) and 22.03.2019
(W.P.No.15683 of 2020), served upon the petitioners on 13.03.2020 and
appeals ought to have been filed on or before 12.06.2020. The Writ Petitions
have been filed on 23.10.2020. In WP.No.17833, 17838, 17840 and 17844 of
2020, the date of impugned order is 13.11.2019 in respect of which due date for
filing of appeal with delay is 15.04.2020. The Writ Petition has been filed on
20.11.2020.
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3. In W.P.No.17525 of 2020, the impugned order is dated 18.12.2012
read with subsequent order dated 31.01.2013. The limitation for filing of
statutory appeal with delay is long gone, the delay being in excess of seven
years. The petitioners had claimed the benefit of input tax credit (ITC) under
Section 19(11) of the Act. The representation filed by the petitioner in
W.P.No.17525 of 2020 under Section 22(6) (a) of the Act had also been
rejected. This petitioner had challenged the constitutional validity of Section
19(11) before this Court in W.P.No.5056 of 2014 and this writ petition along
with a batch, was dismissed on 24.02.2014. All petitioners were directed to file
objections to notices issued by the assessing officers or appeals before the
appellate authority where assessments had been passed.
4. The order of this Court was challenged by way of Special Leave and in
the case of ALD Automotive P. Ltd. Vs. Commercial Tax Officer (C.A.No.10412
of 2018), the assesses’s appeals have been dismissed by a judgment of the
Supreme Court dated 12.10.2018.
5. The explanation offered for the delay between 12.10.2018 and
27.11.2020 when the Writ Petition was filed is that the consultant who had been
approached for filing of the appeal had been bedridden and not filed the appeal
as instructed. The onset of the pandemic thereafter further handicapped the
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W.P.No.15679 of 2020 etc. batch
petitioner. The petitioner was put to terms and directed to pay 100% of the
disputed tax which condition has been complied with. In light of the
explanation offered and since the terms have been complied with, the delay in
filing of the Writ Petition is condoned.
6. Impugned orders in W.P.Nos.17926 and 17927 of 2020 are dated
14.01.2020 in respect of which due date for filing of appeal with delay is
21.03.2020. An additional affidavit dated 12.12.2020 explains the reasons for
the laches stating that the petitioner had approached a Sales Tax Practitioner
(STP) by name Mr.Rakkimuthu instructing him to prepare the appeal papers.
The appeal was prepared and was supposed to have been filed before the
Appellate Authority within the period of 30 days available for condonation of
delay. However, Mr.Rakkimuthu passed away on 16.03.2020 and this fact was
unknown to the petitioner. When action for recovery was initiated by the
Commercial Taxes Department, the petitioner made an attempt to contact STP
and came to know from his son that he had passed away. The papers were
obtained from his son and entrusted to another STP on 14.10.2020. The appeal
was proposed to be filed seeking condonation of delay. Unfortunately, the
second practitioner had met with an accident on 25.02.2020 and had been
admitted in the hospital till 24.03.2020 for treatment, by which time, lock-down
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had been announced by the Government to contain the spread of the COVID-
19 pandemic. It was only on 14.10.2020 that, the petitioner was able to
coordinate with the STP, execute the appeal papers and filed the same before
the second respondent, which were returned on the ground that there was no
power for condonation of delay of 236 days. The Writ Petition was filed on
01.12.2020. In the light of explanation offered by the petitioner, the delay in
filing of the Writ Petition is justified and has been fully explained.
7. In all the above cases, no dispute has been raised by the revenue
counsel in regard to the individual facts as well as dates and the sequence of
events set out.
8. With the advent of COVID -19 pandemic, the Supreme Court, in a
series of judgments viz., In Re: Cognizance for Extension of Limitation dated
23.03.2020, 06.05.2020, 10.07.2020 and M/s.SS Group Pvt. Ltd. V. Aaditiya J.
Garg & another (Civil Appeal No.4085 of 2020 dated 17.12.2020) has
extended time for filing of appeal till 31.01.2021.
9. The above Writ Petitions are thus allowed. The petitioners are
permitted to file statutory appeals within a period of four (4) weeks from today
and if the appeals are filed within the period as aforesaid, they shall be
entertained by the appellate authority without reference to limitation, but
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W.P.No.15679 of 2020 etc. batch
subject to all other compliances including pre-deposit, and decided in
accordance with law.
10. Courts have, pan India, been taking differing stands with regard to
the legal proposition as to whether Writ Petitions challenging orders of
assessment where the concerned Statute provides for the remedy of appeal and
sets out fixed time frames for filing of appeal and condonation of delay if any,
in filing of the same, may be entertained.
11. One school of thought is that no Writ Petition may be entertained in
the above circumstances, as the period of limitation fixed by Statute is sans any
flexibility and rigid, constituting an absolute bar.
12. Yet another school of thought is that the power vested in a
Constitutional Court under Article 226 of the Constitution of India is wide and
Courts can consider the circumstances that have led to delay in challenging
orders of assessment, even beyond the periods of limitation prescribed under
statute.
13. The trigger for the present discussion is the recent judgment of the
Supreme Court in the case of Assistant Commissioner (Ct) LTU vs. M/s.Glaxo
Smith Kline Consumer Health Care Limited [(2020 (36) GSTL 305 (SC)],
wherein this issue arose. In that case, the decision of the High Court at
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Telangana and Andhra Pradesh was challenged and the issue framed was
whether the High Court, in exercise of its writ jurisdiction under Article 226 of
the Constitution of India, ought to have entertained a challenge to the
assessment order, seeing as the statutory remedy of appeal against that order
stood foreclosed by the law of limitation. The petitioner in that case had, for the
period 2013-14, suffered assessment dated 21.06.2017 as against which a
belated statutory appeal had been filed that was dismissed on 25.10.2018 as
being barred by limitation and also since sufficient cause had not been made
out for condonation of the delay.
14. A writ petition was filed challenging the order of assessment (there
was no challenge to the appellate order). This writ petition was entertained by
the High Court noticing that statutory pre-deposit had been effected and the
employee in charge of tax matters had been dismissed leading to the delay in
filing of appeal. That petitioner was put to terms. Upon compliance with the
terms imposed, the matter was heard and the writ petition came to be allowed
quashing the order of assessment and relegating the matter to the assessing
authority to be redone afresh after hearing the petitioner. It is thus that the
revenue carried the matter in appeal to the Supreme Court arguing that the High
Court had exceeded its jurisdiction and committed a manifest error in admitting
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a writ petition beyond the period of limitation set out in the concerned statute.
A plethora of case law on this issue was examined by the Supreme Court.
15. The cases discussed are, Mafatlal Industries Ltd. v. Union of India
(1997 (89) E.L.T. 247 (S.C.)); K.S. Rashid & Son v. Income Tax Investigation
Commission (AIR 1954 SC 207); Thansingh Nathmal v. Superintendent of Taxes
(AIR 1964 SC 1419); Baburam Prakash Chandra Maheshwari v. Antarim Zila
Parishad now Zila Parishad (AIR 1969 SC 556); Oil and Natural Gas
Corporation Limited v. Gujarat Energy Transmission Corporation Limited
((2017) 5 SCC 42); Titaghur Paper Mills Co. Ltd. v. State of Orissa ((1983) 2
SCC 433. Chhattisgarh State Electricity Board v. Central Electricity Regulatory
Commission ((2010) 5 SCC 23); ITC Ltd. v. Union of India (1998 (101) E.L.T. 9
(S.C.)); Nivedita Sharma v. Cellular Operators Association of India ((2011) 14
SCC 337); Raja Mechanical Co. (P) Ltd. v. Commissioner (2013 (29) S.T.R. 81
(S.C.)) = (2012 (279) E.L.T. 481 (S.C.)); Singh Enterprises v. Commissioner
(2008 (221) E.L.T. 163 (S.C.)); State v. Mushtaq Ahmad ((2016) 1 SCC 315);
Suryachakra Power Corporation Limited v. Electricity Department ((2016) 16
SCC 152); Commissioner v. Hongo India (P) Ltd. (2009 (236) E.L.T. 417 (S.C.));
Electronics Corporation of India Limited v. Union of India (2018 (361) E.L.T. 22
(A.P.)); Panoli Intermediate (India) Pvt. Ltd. v. Union of India (2015 (326) E.L.T.
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W.P.No.15679 of 2020 etc. batch
532 (Guj.)); Phoenix Plasts Company v. Commissioner (2013 (298) E.L.T. 481
(Kar.)).
16. At para 12 the Bench states that indubitably, the powers of the High
Court under Article 226 of the Constitution are wide, but certainly no wider
than the plenary powers bestowed to the Supreme Court under Article 142 of
the Constitution that constituted a conglomeration and repository of the entire
judicial power under the Constitution, enabling the Supreme Court to do
complete and total justice. Even so, the Court says the power under Article 142
must be exercised bearing in mind legislative intent and with a view not to
render the statutory provision otiose.
17. At para 14 they state ‘A priori, we have no hesitation in taking the
view that what this Court cannot do in exercise of its plenary powers
under Article 142 of the Constitution, it is unfathomable as to how the High
Court can take a different approach in the matter in 18 (2016) 1 SCC
315 reference to Article 226 of the Constitution. The principle underlying the
rejection of such argument by this Court would apply on all fours to the
exercise of power by the High Court under Article 226 of the Constitution’.
18. At para 15 they state that the scope of jurisdiction under Article 226
and 227 cannot be curtailed by the limitation prescribed under an statute. Thus
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while challenges to assessment may be considered on several grounds such as,
the order having been passed by an Officer without jurisdiction, in flagrant
disregard of law or procedure, the violation of principles of natural justice or
the bar of limitation, if the petitioner has missed the bus, as regards the
statutory limitation prescribed under the statute, such a challenge cannot be
entertained by the High Court ‘as a matter of course’.
19. The wide powers with which the High Court is invested must not be
exercised in such a way that are inconsistent with legislative intent prescribing
a rigid limitation under statute. In conclusion, the Bench reverses the decision
of the High Court and allows the writ appeals saying that no case have been
made out either before the High Court, and no finding has been recorded by the
High Court in regard to its decision for entertaining the writ petition beyond the
period of statutory limitation.
20. Article 226 of the Constitution of India is thus, elastic enough to
accommodate challenges to proceedings beyond the period provided under
limitation, although such discretion has to be exercised very sparingly and the
situation causing the delay examined closely and minutely.
21. This then, is the basis upon which I propose to dispose this batch of
Writ Petitions. I have considered the circumstances leading to the delayed
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W.P.No.15679 of 2020 etc. batch
challenge to the impugned orders of assessment in each case, individually. In
doing so, I envisage two road blocks that the petitioners would have to cross.
The first one relates to the delay occasioned in approaching this Court beyond
the period of statutory limitation and explanation thereto. In my view, the
explanation offered at this stage, would have to comprise of purely
personal/human/medical reasons. Failure to convince the court at this stage
would result in the writ petition being dismissed in limine.
22. If the petitioner crosses the first barrier, the Writ Petition should be
established to be maintainable applying settled parameters, notwithstanding the
availability of an alternate remedy. If the petitioner is successful, the Court
might be persuaded to consider the challenge, permitting it to either file a
belated appeal without reference to limitation or, depending on the merits of
the matter, consider interference under Article 226 in the order itself.
23. In WP.Nos.17709 17710, 17712, 17714, 17717, 17720 of 2020, the
petitioner had earlier challenged a notice for recovery of demands arising from
orders of assessment dated 26.03.2018 for the periods 2008-09, 2009-10, 2010-
11, 2011-12, 2012-13 and 2013-14 and the writ petition (WP.No.21373 of
2015) had been dismissed on 18.09.2019 permitting the petitioner to challenge
the orders of assessment. The present writ petitions have been filed only on
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W.P.No.15679 of 2020 etc. batch
30.11.2020 and the reasons adduced for the delay is the time taken to consult
the auditor/lawyer and the on-going Covid-19 Pandemic. While the pandemic
would explain the delay between March and November 2020, there is no valid
explanation set forth for the elapse of time between 18.09.2019 (orders were
dictated in Court) and March 2020. As no justifiable reason has been set forth
explaining the delay in approaching the Court, these writ petitions are dismissed
in limini.
24. In WP.No.10496, 10536, 10729, 10533 of 2020, the date of impugned
order is 03.06.2019 and due date for filing of appeal with delay is 03.08.2019 as
against which the present Writ Petitions have been filed on 04.08.2020 with a
delay of 367 days. The reason adduced is that the assessing officer was
approached seeking rectification of the order of assessment. He had promised to
look into the matter after seeking the advice of his superiors, but had informed
the petitioner belatedly of his inability to help the petitioners. Though no
documentation is available in support of this submission of the petitioners, the
assessing authority in counter (para-7) fairly accepts the position that an oral
request had been made by the petitioner for revision of assessment. He however
denies that the petitioners were told to await a confirmation from him in this
regard.
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25. Even proceeding on the basis that such a request had been made
before the officer, there is no justification for the petitioner to have tarried for
367 days for this purpose. The petitioner is not a small dealer, but a limited
company with personnel and protocols in place for management of its finances
and tax affairs. The affidavit filed in support of the writ petition has itself been
filed by the Manager (Tax). In such circumstances, it was incumbent upon the
petitioner to have been vigilant in regard to the timelines set out under statute
and approach the appellate authorities in time. Hence, I find no justification for
the delay of 367 days in approaching this court, and dismiss these writ petitions
in limini.
26. In WP.No.120 of 2021, the impugned order in this writ petition is
dated 31.03.2017 and a statutory appeal with delay ought to have been filed on
or before 04.06.2017. The present writ petition has been filed on 08.12.2020
with a delay of 1282 days. The entire blame for the delay has been placed at the
door step of the tax consultant, who, according to the petitioner had prepared
an appeal against the impugned order and, the petitioner believed, would file
the same. The petitioner states that it could not follow up the matter with the
consultant on account of severe financial losses and infighting between the
partners in regard to the company’s management. No evidence whatsoever, has
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been placed in support of this submission and the delay of 1282 days
amounting to nearly three years cannot be condoned on mere ipse dixit. Hence
this Writ Petition is dismissed in limine.
27. The impugned orders in W.P.Nos.14720 and 14722 of 2020 are dated
13.05.2016 and 26.05.2016 and the time for filing of appeals with delay are
long gone. The Writ Petitions have, however, been filed on 08.10.2020 with a
delay in excess of five years. The reasons adduced in the affidavit filed in
support of the Writ Petitions is that the petitioner was unaware of the order
having been passed and came to know of it only when coercive recovery
proceedings were initiated for collection of the arrears. However, this is denied
in the counter filed by the respondent. Typed set dated 22.12.2020 has also
been filed wherein the respondent has placed on record acknowledgement for
the receipt of the assessment order at the end of the dealer along with his
telephone number and with the seal of the petitioner concern. When confronted
with this record, the petitioner does not pursue this submission any longer.
Service of the order upon the petitioner on 04.06.2016 is thus not in dispute.
No explanation is adduced for the elapse in time between 04.06.2016 and date
of filing of this writ petition which is 08.10.2020 and in the light of the
materials produced by the revenue to establish service, which are also not
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denied by the petitioner, I find no justification to entertain these writ petitions
and the same are dismissed in limine.
28. In W.P.Nos.4784 and 4789 of 2021, the impugned orders are dated
15.11.2019 and there is no denial in regard to service of these orders upon the
petitioner. No statutory appeals have been filed in time and instead the present
Writ Petitions have been filed on 03.02.2021 only. The affidavit filed in
support of these Writ Petitions is silent when it come to the delay and does not
offer any explanation in this regard. Thus, while there may be some
justification in regard to the non-filing of appeal between March of 2020 till
date, the period between December 2019 and March 2021 remains
unexplained. Not even a semblance of an explanation is put forth for the
consideration of this Court. Hence these Writ Petitions are dismissed in limine.
Connected Miscellaneous Petitions are closed. No costs.
03.03.2021
Index:Yes/No
Speaking/non-speaking order
Sl/vs
To
The Assistant Commissioner (ST)
Choolai Assessment Circle, No.10, Greams Road,
II Floor, Palaniappa Maligai, Chennai – 600 006.
https://www.mhc.tn.gov.in/judis/
W.P.No.15679 of 2020 etc. batch
Dr.ANITA SUMANTH,J.
Sl/vs
W.P.Nos. 15679, 15683, , 17833, 17838,
17840, 17844, 17926, 17927, 17525,
17709 , 17710, 17712, 17714, 17717, 17720,
14720, 14722, 10496, 10533,10536 and 10729 of 2020
and 120, 4784 and 4789 of 2021
and WMP Nos.19522, 19526, 22122, 22120,
22118, 22128, 22219, 22216, 22217, 22218, 22220,
22221, 21711, 22440, 21947, 21948, 21950,
21954, 21955, 21961, 18290, 18289, 12775, 12773,
12793, 12795, 12789, 12790, 13025, 13028 of 2020,
172, 173, 5410 and 5413 of 2021
Dated: 03.03.2021
https://www.mhc.tn.gov.in/judis/
