Madras High Court
S.Sengodan vs The Appellate Deputy ... on 9 November, 2021
W.P.Nos.18553 and 18557 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.11.2021
CORAM
THE HONOURABLE MR.JUSTICE C.SARAVANAN
W.P.Nos.18553 and 18557 of 2021
and
W.M.P.Nos.19795 and 19798 of 2021
(Through Video Conferencing)
S.Sengodan ... Petitioner in both W.Ps.
Vs
1. The Appellate Deputy Commissioner (ST),
Salem Camp Office,
Coimbatore.
2. The State Tax Officer,
Town Circle,
Attur. ... Respondents in both W.Ps.
Common Prayer: Petition filed under Article 226 of the Constitution of
India to issue a Writ of Certiorarified Mandamus, to call for the records
of the 1st respondent in Na.Ka.No.226/2021/A1 and
Na.Ka.No.226/2021/A1 and quash the impugned Return Memo dated
06.08.2021 passed therein and further direct the 1st respondent to take the
appeal on its file and dispose of the same in accordance with law.
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1/10
W.P.Nos.18553 and 18557 of 2021
For Petitioner : Mr.B.Raveendran
For Respondents : Mr.D.Ravichander
Government Counsel
ORDER
Heard the learned counsel for the petitioner and the learned
Government counsel for the respondents.
2. A short point that arises for consideration is whether the office
of the 1st respondent was justified in returning the appeal filed by the
petitioner against the rectification order dated 29.04.2021?
3. The petitioner has challenged the impugned memo dated
06.08.2021, returning the appeal filed by the petitioner against the
rectification order dated 29.04.2021 passed by the 2nd respondent under
Section 84 of the Tamil Nadu Value Added Tax Act, 2006.
4. The facts of the case are that the petitioner had earlier suffered
assessment orders on 19.03.2020 for the Assessment Years 2013-2014 &
2014-2015. Under this circumstances, the petitioner had filed an
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W.P.Nos.18553 and 18557 of 2021
application for rectification of the mistakes under Section 84 of the Tamil
Nadu Value Added Tax Act which came to be disposed by an order dated
29.04.2021.
5. The original assessment order passed on 19.03.2020 thus stood
merged with the rectification order dated 29.04.2021. The petitioner
therefore preferred an appeal before the Appellate Commissioner under
Sections 51 and 53 of the TNVAT Act, 2006. By the impugned return
memo dated 06.08.2021, the office of the 1st respondent has stated that
the appeal is not maintainable as time barred.
6. Section 84 of the Tamil Nadu Value-Added Tax Act, 2006,
allows rectification of mistake of an order passed by an Assessing
Authority, the Appellate Authority or the Revisional Authority, including
the Appellate Tribunal which passed the order under the aforesaid
section, ''rectification of mistake'' can be allowed on “error apparent on
the face of the record”.
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W.P.Nos.18553 and 18557 of 2021
7. Under Order 47 Rule 1 of the Civil Procedure Code, a review of
a judgement is permissible and the Court can rectify an “error apparent
on the face of the record” in the judgment/decree passed by it. Order 47
Rule 7 Civil Procedure Code, which has codified the procedure also
makes it clear that an order of the court rejecting the application shall not
be appealable. An order granting an application for review may be
objected to at once by way of an appeal from the order granting the
application or in an appeal from the decree or order finally passed or
made in suit.
8. The effect of an order under review of the judgement/decree
results in vacation of the original judgement/decree which was earlier
passed. (see also the decision of the Hon'ble Supreme Court in Sushil
Kumar Sen vs State of Bihar, [(1975) 1 SCC 774].
9. In Kunhayammed v. State of Kerala, (2000) 6 SCC 359, the
Hon'ble Supreme Court held observed as follows:-
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W.P.Nos.18553 and 18557 of 2021
“The distinction is clear. Entertaining an
application for review does not vacate the decree
sought to be reviewed. It is only when the
application for review has been allowed that the
decree under review is vacated. Thereafter the
matter is heard afresh and the decree passed
therein, whatever be the nature of the new decree,
would be a decree superseding the earlier one. The
principle or logic flowing from the above said
decisions can usefully be utilised for resolving the
issue at hand.”
10. A reading of Sub Section (5) to Section 84 of the TNVAT Act,
2006 makes it clear that the provisions of this Act relating to appeal and
revision shall apply to an order or rectification made under this section as
they apply to the order in respect of which such order of rectification has
been made which reads as under. Section 84(5) of the TNVAT Act, 2006
is reproduced below:-
''(5) The provisions of this Act relating to
appeal and revision shall apply to an order or
rectification made under this section as they apply
to the order in respect of which such order of
rectification has been made.''
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W.P.Nos.18553 and 18557 of 2021
11. Thus, if an application for review is dismissed, the party
aggrieved cannot be left without remedy to file an appeal against the
original judgement/decree review of which was pursued bona-fide but
unsuccessfully.
12. Under those circumstances, an appellate remedy would be still
available and the delay on account of pendency of review petition, is to be
excluded under Section 14 of the Limitation Act 1963 which provided
such remedy was pursued bona fide.
13. If, on the other hand, if there was a review of the original
judgement/decree/order, latter stands substituted by a new judgement/
decree / order of the court or Authority reviewing / rectifying such
judgment orders. Appellate remedy lies against such judgment/decree
which reviews the earlier judgment/decree.
14. Same principle will apply in the case of review under section 84
of the Tamil Nadu Value-Added Tax Act, 2006. Thus, if a review
application was dismissed, the petitioner would have been entitled to file
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W.P.Nos.18553 and 18557 of 2021
a statutory appeal against the original order of assessment and pray for
exclusion of time taken in pursuing the application under section 84 by
virtue of Section 14 of the Limitation Act, 1963 while preferring an
appeal under section 51/52 of the Tamil Nadu Value-Added Tax Act,
2006.
15. On the other hand, if the order, passed originally stands
substituted by another order under section 84 of the Tamil Nadu Value-
Added Tax Act, 2006, as in the present case, appellate remedy cannot
disallowed. It can be appealed before the Appellate Commissioner under
section 51/52 of the Tamil Nadu Value-Added Tax Act, 2006 as a fresh
period of limitation would commence for appeal from passing of the order
under review. Once an assessment order is rectified, the remedy to file an
appeal against such assessment order cannot be denied.
16. Therefore, the memo returning of the appeal filed by the
petitioner under Sections 51 / 52 of TNVAT Act, 2006 cannot be
sustained.
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W.P.Nos.18553 and 18557 of 2021
17. Therefore, there is no merits in the impugned return memos of
the office of the 1st respondent. The petitioner was well within his rights
to have filed an appeal against the order/s dated 29.4.2021.
18. In the light of the above discussion, the impugned
communications are quashed. The office of the 1st respondent is directed
to number the appeal and list the appeals for final hearing before the 1 st
respondent to pass orders on merit and in accordance with law.
19. Considering the fact that the dispute pertains to the Assessment
Years 2013-14 and 2014-15, the 1st respondent shall endeavor to dispose
the appeals within a period of three months from the date of receipt of a
copy of this order. Before passing such order, the petitioner shall be heard
either in person or through his authorised representative physically or
video conferencing.
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W.P.Nos.18553 and 18557 of 2021
20. Accordingly, the Writ petitions stand allowed as prayed for
with a consequential direction. Consequently, connected miscellaneous
petitions are closed. No costs.
09.11.2021
Index : Yes / No
Internet : Yes / No
ssn
To
1. The Appellate Deputy Commissioner (ST),
Salem Camp Office, Coimbatore.
2. The State Tax Officer,
Town Circle, Attur.
https://www.mhc.tn.gov.in/judis
W.P.Nos.18553 and 18557 of 2021
C.SARAVANAN, J.,
ssn
W.P.Nos.18553 and 18557 of 2021
and
W.M.P.Nos.19795 and 19798 of 2021
09.11.2021
https://www.mhc.tn.gov.in/judis
