Supreme Court

Assistant Commissioner (Ct) Ltu vs. Glaxo Smith Kline Consumer

MANU/SC/0434/2020

06.05.2020

Limitation

If appeal is presented by Assessee beyond extended statutory limitation period, delay cannot be condoned without sufficient cause

The Respondent is a registered dealer on the rolls of Assistant Commissioner of Commercial Taxes, Large Tax Payer Unit at Kakinada under the provisions of Andhra Pradesh Value Added Tax Act, 2005 and the Central Sales Tax Act, 1956 and is engaged in the business of manufacturing and sale of Horlicks, Boost, Biscuits, Ghee, Ayurvedic Medicines etc.

The Respondent filed appeal against the assessment order, the same was dismissed being barred by limitation and also because no sufficient cause was made out. The Respondent was then advised to file writ petition before the High Court. The respondent did not challenge the order passed by the Appellate Deputy Commissioner, rejecting the statutory appeal preferred by the Respondent against the assessment order.

The Division Bench of the High Court directed the Respondent to pay an additional amount equivalent to 12.5% of the disputed tax. The Respondent, in terms of the stated order, deposited an additional amount equivalent to 12.5% of the disputed tax amount. The writ petition was then taken up for hearing, the writ petition came to be allowed and the order passed by the Assistant Commissioner, has been quashed and set aside and the Respondent relegated before the Assistant Commissioner for reconsideration of the matter afresh after giving personal hearing to the respondent to explain the discrepancies.

It is urged that, the Respondent having failed to avail of statutory remedy of appeal within the prescribed time and also because the delay in filing appeal had not been satisfactorily explained, the High Court ought not to have entertained the writ petition. High Court can entertain a writ petition against any order or direction passed/action taken by the State under Article 226 of the Constitution, it ought not to do so as a matter of course, when the aggrieved person could have availed of an effective alternative remedy in the manner prescribed by law.

Even though the High Court can entertain a writ petition against any order or direction passed/action taken by the State under Article 226 of the Constitution, it ought not to do so as a matter of course, when the aggrieved person could have availed of an effective alternative remedy in the manner prescribed by law. In Thansingh Nathmal & Ors. vs. Superintendent of Taxes, Dhubri & Ors., the Constitution Bench of this Court made it amply clear that, although the power of the High Court under Article 226 of the Constitution is very wide, the Court must exercise self-¬imposed restraint and not entertain the writ petition, if an alternative effective remedy is available to the aggrieved person.

The remedy of appeal is creature of statute. If the appeal is presented by the assessee beyond the extended statutory limitation period of 60 days in terms of Section 31 of the 2005 Act and is, therefore, not entertained, it is incomprehensible as to how it would become a case of violation of fundamental right, much less statutory or legal right. In factual matrix of the present case, it is noticed that, the Respondent had asserted that it was not aware about the passing of assessment order, although it is admitted that the same was served on the authorised representative of the Respondent.

The date on which the Respondent became aware about the order is not expressly stated either in the application for condonation of delay filed before the appellate authority. On the other hand, it is seen that the amount equivalent to 12.5% of the tax amount came to be deposited on behalf of Respondent, without filing an appeal and without any demur ¬ after the expiry of statutory period of maximum 60 days, prescribed under Section 31 of the 2005 Act. Not only that, the Respondent filed a formal application under Rule 60 of the 2005 Rules and pursued the same in appeal, which was rejected.

Pertinently, no finding has been recorded by the High Court that it was a case of violation of principles of natural justice or non¬compliance of statutory requirements in any manner. Therefore, the High Court ought not to have entertained the subject writ petition filed by the Respondent herein. The same deserved to be rejected at the threshold. The impugned judgment and order passed by the High Court is set aside. Appeal allowed.

Tags : Delay Condonaton Legality

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