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DEVI SPINNING MILLS versus APPELLATE ASSISTANT COMMISSIONER

High Court of Madras

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Devi Spinning Mills v. Appellate Assistant Commissioner - W.P. No.33402 of 2005 [2007] RD-TN 754 (1 March 2007)

IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED: 01.03.2007

CORAM

THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIAN

W.P. No.33402 of 2005

(O.P No.17 of 2003)

Devi Spinning Mills Ltd.,

Salem Hosur Bye pass Road,

Vannampatty,

Dharmapuri. ..Petitioner Vs

1. The Appellate Assistant Commissioner,

CT.,

Salem.

2. The Deputy Commercial Tax Officer,

Dharmapuri. ..Respondents PRAYER:

This Writ Petition is filed under Article 226 of the Constitution of India to issue a Writ of Certiorari to call for the records of the case in MP No.121/2000 dated 27.09.2002 relating to the petitioner for the assessment year 1994-1995 on the files of the first respondent herein, quash the same and direct the first respondent to dispense with the payment of the admitted tax relating to the assessment year 1994-95 and admit the appeal filed on 05.06.2000. For Petitioner : R.V.Chitra & Associates For respondents : Mr.Haja Nazirudeen, SGP (Taxes) ORDER



The petitioner filed the original petition invoking the jurisdiction of Section 7 of the Special Tribunal Act seeking for the relief to call for the records of the case in MP No.121/2000 dated 27.09.2002 relating to the petitioner for the assessment year 1994-1995 on the file of the first respondent-The appellate Assistant Commissioner(C.T.), Salem, quash the same and direct the first respondent to dispense with the payment of the admitted tax relating to the assessment year 1994-1995 and admit the appeal filed on 05.06.2000 and that OP stands converted to this writ petition on being transferred to the file of this Court.

2. The brief facts for disposal are as follows: For the assessment year 1994-1995, the petitioner was assessed to tax by the proceedings dated 31.03.2000 levying the tax, surcharge 15 on the tax due and additional sales tax, totalling a sum of Rs.20,82,681/- after adjusting the payment originally made. As against which, the petitioner filed an appeal on 03.06.2000. It appears that the requirement of Section 31 of the appeal provision i.e., payment of 25% of the disputed tax has not been made by the petitioner on the premise that the petitioner company was declared as a sick industry under the Sick Industrial Companies Act. The petitioner need not pay the amount to maintain the appeal. In that regard, a miscellaneous petition in M.P.No.121 of 2000 has been filed and that was taken up for orders and by passing the impugned order dated 27.09.2002, the Appellate Authority negatived the request of the petitioner for entertaining the appeal filed under Section 31 of the TNGST Act without payment of the admitted tax, which is a sine qua non or condition precedent for maintaining the appeal. The said order is canvassed by filing O.P. The O.P. was entertained in the year 2003 and kept pending and thereupon after the abolition of the Tribunal, the above O.P stands transferred and came up before this Court for orders today.

3. The learned counsel for the petitioner contends that this Court while exercising jurisdiction under Article 226 of the Constitution of India, to sub-serve the ends of justice, can pass an order directing the authorities to entertain the appeal even without payment of admitted tax, by relying on the following decisions: (1) (1999) 1 Supreme Court Cases 259 (Sangfroid Remedies Ltd., Vs. Union of India and others), (2) 2000(118) ELT 553 (SC) (Vijay Packaging System Ltd., Vs. Commissioner of Customs and C.Ex., A.P.), (3) 122 STC 594 (State of Tripura Vs. Manoranjan Chakraborty and others) and (4) 147 STC 246 (Royal Insulation (P) Ltd., Vs. Commercial Tax Officer, Manali Assessment Circle, Chennai).

4. Before considering the above decision, I am of the view that it is worthwhile to put in this judgment the basic requirement of following the statutory provision of Section 31 of the TNGST Act which reads as follows:

31.Appeal to the Appellate Assistant Commissioner- (1) Any person objecting to an order passed by the appropriate authority under Section 4-A, sub-section (3) of Section 10, Section 12, Section 12-A, Section 14, Section 15, sub sections (1) and (2) of Section 16, Section 18, sub-sections (2) of Section 22, Section 23 or Section 27 other than an order passed by an Assistant Commissioner (Assessment) may, within a period of thirty days from the date on which the order was served on him in the manner prescribed, appeal against such order to the Appellate Assistant Commissioner having jurisdiction: Provided that the Appellate Assistant Commissioner may, within a further period of thirty days admit an appeal presented after the expiration of the first mentioned period of thirty days if he is satisfied that the appellant had sufficient cause for not presenting the appeal within the first mentioned period: Provided further that in the case of an order under sub-section (3) of Section 10, Section 12, Section 12-A, Section 14, Section 15 or sub-sections (1) and (2) of Section 16, no appeal shall be entertained under this sub-section unless it is accompanied by satisfactory proof of the payment of the tax admitted by the appellant to be due or of such instalments thereof as might have become payable, as the case may be, and and (twenty-five) per cent of the difference of the tax assessed by the assessing authority and the tax admitted by the appellant." (bold supplies)

5. So in order to maintain the appeal as per the above statutory provision, it is mandatory on the part of the appellant as the terminology used in the Section shall be entertained to satisfy the Appellate Authority about the proof of payment of tax admitted by the appellant to be due.

6. From the above, it is clear that unless and until that amount is paid, the Statutory Authority or the Appellate Authority, who is a statutory creature, cannot go beyond and admit the same against the provisions of the statute. Now let us consider the decisions, which are cited across the bar. First of all, in the case of Sangfroid Remedies Ltd., Vs. Union of India and others (1999) 1 Supreme Court Cases 259), the pre deposit as contemplated under Section 35-F of Central Excise and Salt Act was under consideration. So is the case of Vijay Packaging System Ltd., Vs. Commissioner of Customs and C.Ex., A.P. (2000(118) ELT 553) in which also the very same rovision of Section 35-F and 35L of the Central Excise Act has been considered. Section 35 of the Central Excise Act provides for dispensation of pre-deposit and empowers the statutory authorities either to reduce the admitted duty or totally waive the duty payable for maintaining he appeal, if the assessee satisfies the Appellate Authority that the assessee has a prima case and genuine and undue hardship in making the payment. But such a statutory provision giving discretionary power to the Appellate Authority while invoking the power under Section 31 of the Act, is not incorporated in the statute.

7. The other decision of State of Tripura Vs. Manoranjan Chakraborty and others (122 STC 594) was a case, which was decided with reference to the Sections 20 and 21 of the Tripura Sales Tax Act, 1976, which provides that no appeal shall be entertained unless the amount of tax assessed or penalty levied is paid, and the discretion was given to the Appellate Authority to direct the appellant to pay any lesser amount not less than 50. As already stated no such discretion is available in the statute under consideration i.e., TNGST Act.

8. The last of the case, the Division Bench of this Court in the Royal Insulation (P) Ltd., Vs. Commercial Tax Officer, Manali Assessment Circle, Chennai, (147 STC 246) was the one which is also not in favour of the petitioner. But however recommended the State Government to issue Ordinance forthwith amending the Section 31 of the Tamil Nadu General Sales Tax Act, 1959 and making a provision permitting waiver or stay by the Appellate Authority ( in its discretion) of the pre deposit.

9. Thus all the decisions relied on by the learned counsel for the petitioner were rendered by invoking the statutory powers invested on the officers concerned.

10. When Section 129-E of the Customs Act, 1962 was put in issue before the Supreme Court in the case of Vijay Prakash D Mehta and another Vs. Collector of Customs(Preventive), Bombay, reported in 1988(4) SCC 402, the Supreme Court has held as follows: "That the right to appeal is neither an absolute right nor an ingredient of natural justice the principles of which must be followed in all judicial and quasi judicial adjudications. The right to appeal is a statutory right and it can be circumscribed by the conditions in the grant. It is not the law that adjudication by itself following the rules of natural justice would be violation of any right-constitutional or statutory- without any right of appeal, as such. If the statute gives a right to appeal upon certain conditions, it is upon fulfilment of those conditions that the right becomes vested and exercisable to the appellant."

11. Likewise, Section 87(b) of Contonment Act, 1924, was assailed before the Supreme Court in St. Mary's School and others Vs. Contonment Board, Meerut and others (1966) 7 SCC page 484) on the ground that it places onerous condition on right of appeal not sustainable. For the very reasons stated in the earlier judgment the Supreme Court rejected the above contention.

12. When Section 170(D) of the Delhi Municipal Corporation Act, 1957 came to be questioned as onerous on the premise that it requires pre deposit of the tax, the Supreme Court has held in the case of Shyam Kishore and others Vs. Municipal Corporation of Delhi and another (1993) 1 SCC page 22), that the provision is valid and the Appellate Authority has no jurisdiction to waive the condition of deposit or stay of collection of tax pending disposal of the appeal, so is the another judgment of the Supreme Court in State of Karnataka Vs. Sunagar Brothers (1993) 3 SCC page 16).

13. The reliance of Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985, by the petitioner is also totally misplaced. That is the provision, which provided a protective umbrella to the sick industrial company from forcible recovery of the amount from the company, which is declared to be sick so as to enable the company to come out of its sickness. The relevant phraseology employed in the section is hereunder. "No proceedings for the winding up of the industrial company or for execution, distress or the like against any of the properties of the industrial company or for the appointment of a receiver in respect thereof (and no suit for the recovery of money or for the enforcement of any security against the industrial company or of any guarantee in respect of any loans or advance granted to the industrial company shall lie or be proceeded with further, except with the consent of the Board or, as the case may be, the appellate authority."

14. In the present case, no recovery proceedings is taken against the company for recovering the amount. Without the consent of the BIFR or the appellate authority, it is the company which filed the statutory appeal. When the company itself volunteered to file an appeal, the appeal has to be entertained after compliance of the statutory provision i.e. payment of 25 of the disputed tax, which is required to be paid for the maintenance of the appeal. The statutory requirement of the payment for maintaining the appeal can never be compared with the proceedings for winding up or for execution or distress or the like against any of the properties of the company. The object of the Section has been very vividly expressed by the Supreme Court even in the case of the Deputy Commercial Tax Officer and others Vs. Corromandal Pharmaceuticals and others (105 STC 327). That apart, the above said provision cannot be made applicable for non payment of the statutory obligation for maintaining of the appeal at the instance of the petitioner.

15. This Court do not want to multiply the decisions to the above said effect and there are umpteen number of decisions of the Supreme Court available on this issue. Hence, for the foregoing reasons and in the light of the decisions stated above and of the further fact that all the decisions cited by the learned counsel for the appellant are not applicable to the statutory provision, which is under consideration, the writ petition is dismissed. No costs.

16. The learned Senior Counsel requests that the Court may observe that the petitioner can make a representation to the Government to remove the embargo for filing the appeal. I am of the view that the tax payer is having such a right to put forth his grievance. raa

To

1. The Appellate Assistant Commissioner, CT.,

Salem.

2. The Deputy Commercial Tax Officer,

Dharmapuri.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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