Tvl.Lml Limited v. The Assistant Commissioner(Ct)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.6.2016
CORAM
THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM W.P.No.29623 of 2004 and W.P.M.P.35992 of 2004 Tvl.LML Limited, Second Floor, Chateau 'D' Ampa, 110, Nelson Manickam Road, Aminjikarai, Chennai-29.
... Petitioner vs.
1.The Assistant Commissioner(CT), Kanchipuram.
2.The Deputy Commercial Tax Officer, Sriperumpudur Assessment Circle, Poonamallee, Chennai.
... Respondents Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of certiorarified mandamus, calling for the records of the first respondent herein in L.Dis.11101/2004/C3 dated 30.08.2004 and quash the same and direct the first respondent to condone the delay of 45 days in filing the appeal dated 2.8.2004 and dispose hit of on merits in accordance with law.
For Petitioner : Mr.A.Ravichandran For Respondents : Mrs.S.Kanmani Annamalai,A.G.P.
ORDER
Heard Mr.A.Ravichandran, learned counsel for the petitioner and Mr.S.Kanmani Annamalai, learned Additional Government Pleader, for the respondents .
2. The petitioner has filed this writ petition challenging the order passed by the first respondent dated 30.08.2004, by which the petitioner's appeal petition was returned on the ground that there is no provision under the Tamil Nadu Tax on Entry of Motor Vehicles into Local Areas Act, 1990 (hereinafter referred to as the '1990 Act' in short) to condone the delay in filing the appeal.
3. The petitioner preferred an appeal as against the order of revision of assessment dated 13.01.2004. To prefer an appeal, the petitioner has to remit the entire tax, which admittedly they have done. However, the appeal had been presented with a delay of 45 days and the remittance of the predeposit was done with the delay of 28 days.
4. The second respondent refused to entertain the appeal stating that there is no provision to condone the delay under the provisions of 1990 Act. Section 13 of the Act deals with appeals and revisions. In terms of Sub-section (3) of Section 13, no appeal shall be entertained by the appellate authority or the Joint Commissioner (CT), unless it is filed within 30 days from the date of receipt of the order appealed against by the assessee, and unless the entire amount of tax and penalty, if any, has been credited by the assessee in the Government Treasury. Unlike the Tamil Nadu General Sales Tax Act or Tamil Nadu Value Added Act, 2006, there is no outer time fixed for the appellate authority to exercise the power of condonation of delay.
In those statutes, the appellate authorities have been granted 30 days additional time to exercise discretion for condoning the delay in filing the appeals or revisions. However, in the present Act, namely, the 1990 Act, there is no such prohibition and the operation of the Limitation Act has not been specifically or by implication excluded in the said Section. Therefore, the provisions of Section 5 of the Limitation Act can be invoked and the appellate authority can examine as to whether the assessee has shown sufficient cause in not preferring the appeal on time or not effecting the pre-deposit within time. This view is supported by a decision of the Honourable Division Bench of this Court in the case of State of Tamil Nadu vs. Saganla [(1993) (Vol.88) STC 17].
5. If the above decision is applied to the facts of this case, then the reasoning given by the second respondent in the impugned order has to be faulted. If that is so, it has to be seen as to whether the delay has to be condoned?.
6. Admittedly the delay is not an inordinate delay, but it is only 45 days and the petitioner has set out certain circumstances, which prevented them from filing the appeal on time. Hence, this Court is inclined to exercise discretion and condone the delay. Accordingly, the writ petition is allowed. The impugned order is set aside and the delay in filing the appeal is condoned. The petitioner is directed to re-present the appeal papers along with a copy of this order before the
second respondent, who shall deal with the appeal petition in accordance with law. No costs. Connected miscellaneous petition is closed.
msk s/d- Assistant Registrar(CS-II) True Copy Sub-Assistant Registrar To 1.The Assistant Commissioner(CT), Kanchipuram.
2.The Deputy Commercial Tax Officer, Sriperumpudur Assessment Circle, Poonamallee, Chennai.
+ 1 cc to Spl. govt.Pleader SR 35494 ala(co) prk19/7 W.P.No.29623 of 2004