Madras High Court
M/S.Eraiyarul Construction vs Appellate Deputy Commissioner ... on 10 November, 2022
W.P(MD).No.25573 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 10.11.2022
CORAM
THE HONOURABLE MR.JUSTICE MOHAMMED SHAFFIQ
W.P(MD).No.25573 of 2022
and
W.M.P(MD).Nos.19655 and 19657 of 2022
M/s.Eraiyarul Construction
Material Trading Private Limited,
Represented by its Managing Director,
Mr.S.Ashiq Hameed,
92, Bye-pass Road,
Tiruvarur-610001. ... Petitioner
Vs.
Appellate Deputy Commissioner (CT),
Thanjavur,
Camp at Thanjavur,
20/3, Commercial Tax Building,
Sachithananda Muppparanar Road,
Thanjavur-613 001. ...Respondent
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Certiorarified Mandamus, calling for the
records on the file of the Respondent and quash the impugned order in
N.A.K.A.343/2022/A1, dated 15.07.2022 passed under Section 51(3) of the
Tamil Nadu Value Added Tax Act, 2006 by the Respondent as illegal and not
in accordance with law and consequently, direct the Respondent to number
the Petitioner's appeal and consider the same on merits and in accordance
with law.
1/6
https://www.mhc.tn.gov.in/judis
W.P(MD).No.25573 of 2022
For Petitioner : Mr.R.Sivaraman
For Respondent : Mr.M.Prakash
Additional Government Pleader
ORDER
The writ petition is filed challenging the rejection/return of the appeal
papers on the premise that the Petitioner has failed to make the pre-deposit of
25% of tax amount on or before 30.05.2022, i.e., beyond the statutory period
of limitation for filing an appeal, instead, it was paid only on 04.07.2022.
2. It is submitted by the learned counsel for the Petitioner that the
Hon'ble Supreme Court in Suo motu Writ Petition (C) No.3 of 2020 had
extended time until 31.05.2022 in respect of which the limitation would
expire between 15.03.2020 and 28.02.2022. In any view, it is submitted that
appeal having been filed in time, its rejection only on the ground that 25%
pre-deposit of tax amount has been filed beyond the time limit for filing
appeal is un-sustainable. In this regard, reliance was sought to be placed on
the judgment of the Hon’ble Supreme Court in the case of M/s.Ranjit Impex
Vs. Appellate Deputy Commissioner and another reported in (2013) 10 SCC
655. Relevant portion reads as under:
“3. In the writ appeal, it was contended that the appellate
authority could not have returned the memorandum of appeal
on the ground that Section 51 uses the term “entertain” and
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W.P(MD).No.25573 of 2022
second, the amount that was due to the appellant from the
Department was to be adjusted for the purpose of deposit as
envisaged under Section 51 of the Act. The Division Bench came
to hold that the proof of deposit of tax has to be produced at the
time when the appeal is taken for consideration but not at the
time of presentation of the appeal. As far as issue of adjustment
is concerned, it is objected that the amount had properly been
adjusted.
4. As far as the first issue is concerned, it is needless to
say that the conclusion arrived at by the Division Bench is
absolutely justified, for a condition to entertain an appeal does
not mean that the memorandum of appeal shall be returned
because of such non-compliance pertaining to pre-deposit. The
only consequence is that the appeal shall not be entertained
which means the appeal shall not be considered on merits and
eventually has to be dismissed on that ground.”
3. It is submitted by the learned counsel for the Petitioner that payment
of Pre-deposit of 25% of tax amount has been complied with, as would be
evident from the impugned proceedings, which only rejects the appeal on the
ground that there has been delay in payment of disputed tax. It is submitted
that difference in payment of pre-deposit of 25% of tax was only in view of
the lack of clarity as to the amount due in terms of assessment order. A perusal
of the assessment order shows that the balance of tax as is shown as
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W.P(MD).No.25573 of 2022
Rs.6,01,306/-. With regard to a sum of Rs.1,30,158/-, there is no demand, the
assessment order provides for reversal of input tax credit. It is submitted that
the Petitioner was under the bonafide impression that 25% pre-deposit
mandated under the Tamil Nadu Value Added Tax Act for filing an appeal was
only in respect of the balance of tax shown as Rs.6,01,306/-, and would not
include Rs.1,30,158/- which represents reversal of Input Tax Credit in terms
of the order of assessment for the purpose of calculating the pre-deposit of
25%. It was submitted that the delay in payment of of pre-deposit was only in
view of the above bonafide mistake on part of the Petitioner.
4. This Court finds that the mistake was bonafide. The impugned order
rejecting the appeal taking away the valuable right of appeal of the Petitioner
for the above bonafide mistake may not be warranted. Further, the Petitioner
having paid 25% pre-deposit applying the judgment Hon'ble Supreme Court
to the facts of the case, it appears that the appellate authority may not be
justified in rejecting the appeal. In view of the same, the impugned order,
dated 15.07.2022 is set aside and the appellate authority is directed to
entertain the appeal.
https://www.mhc.tn.gov.in/judis
W.P(MD).No.25573 of 2022
5. With the above direction, the writ petitions stands disposed of. No
costs. Consequently, connected miscellaneous petitions are closed.
10.11.2022
Index : Yes / No
Internet : Yes/ No
sn
To
The Appellate Deputy Commissioner (CT),
Thanjavur,
Camp at Thanjavur,
20/3, Commercial Tax Building,
Sachithananda Muppparanar Road,
Thanjavur-613 001.
https://www.mhc.tn.gov.in/judis
W.P(MD).No.25573 of 2022
MOHAMMED SHAFFIQ, J.
sn
W.P(MD).No.25573 of 2022
10.11.2022
https://www.mhc.tn.gov.in/judis
