M/s.Joy Alukkas Traders (India) Private Limited v. The Commercial Tax Officer, Somajiguda Circle, Hyderabad & Ors.

THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION Nos.6652 and 6673 OF 2009 COMMON ORDER: (Per Hon’ble Sri Justice Ramesh Ranganathan) In both these writ petitions the order passed by the second respondent dated 25.03.2009, refusing to entertain the appeal filed under Section 31 of the Andhra Pradesh Value Added Tax Act, 2005 (the VAT Act, for brevity), is under challenge. The petitioner, a dealer in Jewellery, is an assessee on the rolls of the first respondent. For the assessment year 2005-2006 the first respondent passed an order of assessment dated 08.09.2008 assessing the petitioner to tax under the VAT Act. On the ground that there cannot be two levies on one transaction, both under the VAT Act as under well as the Central Sales Tax Act, 1956 (the CST Act, for brevity), the petitioner filed W.P.No.23937 of 2008 and batch. This Court set aside the order passed under the VAT Act, and remanded the matter to the first respondent to re-examine the same. The Division Bench noted the submission of the petitioner that they had filed a statutory appeal during the pendency of the writ petition and, as the writ petition had been filed within the period of limitation, the delay, if any, caused in filing the appeal be condoned. The Division Bench, however, held that it was for the appellate authority to consider the said submission in accordance with law. The petitioner was permitted to withdraw the writ petitions filed against the orders passed under the CST Act. Thereafter the second respondent, by the impugned order dated

25.03.2009, refused to entertain the appeal preferred by the petitioner on the ground that he did not have the power to condone the delay in preferring the appeal beyond the period of 60 days, and the provisions of the Limitation Act, 1963 (the Limitation Act, for brevity) do not apply. Aggrieved thereby the present writ petitions have been filed. Sri S.Suri Babu, learned counsel for the petitioner, would make submissions on merits which we are not inclined to examine since the only ground on which the impugned order came to be passed was that it was not filed within the period prescribed under the statute, and the provisions of the Limitation Act do not apply. Learned counsel would rely on a Full Bench judgment of this Court in The Nalgonda Co-operative Marketing Society Limited v. The Labour Court, Hyderabad[1] as also a Division Bench of the Punjab and Haryana High Court in Vijay Brothers v. Union of India[2], to contend that the delay in filing the appeals ought to have been condoned. In so far as the judgment in Nalgonda Co-operative Marketing Society is concerned, the matter arose under the provisions of the Industrial Disputes Act, 1947 (the Disputes Act, for brevity), and the Full Bench of this Court held that the provisions of Section 5 read with Section 29(2) of the Limitation Act were not applicable to appeals or applications filed before the Labour Court constituted under Section 7 of the Disputes Act and designated as the second appellate authority under Section 41(3) of the Andhra Pradesh Shops and Establishments Act, 1966; the provisions of Section 29(2) of the Limitation Act, read with Article 137 in the Schedule to the Act, make Section 5 of the Act applicable to an appeal or application filed under any special or local law in a civil or criminal Court in so far as and to the extent to which Section 5 is not expressly excluded; and they had no application to an appeal or application filed under any special or local law before a Tribunal which is not a Court. I n Vijay Brothers, the Division Bench of the Punjab and Haryana High Court held that Section 14 of the Limitation Act was applicable to proceedings under the Customs Act, 1962 (the Customs Act, for brevity) in respect of an appeal preferred under Section 128 of the Customs Act; and the time spent in pursuing the remedy under Article 226 of the Constitution of India before the High Court, and the appeal before the Supreme Court, would have to be excluded. In more or less similar circumstances, as arise in the present case, this Court in M/s.Agarwal Industries Private Limited, Afzalgunj v. Appellate (CT), Hyderabad Rural Division[3], after Deputy Commissioner considering the judgments of the Supreme Court in Mukri Gopalan v. Cheppilat Puthanpurayil Boobacker[4]; and Commissioner of Sales Tax, U.P., Lucknow v. M/s.Parson Tools and Plants, Kanpur[5] and the Division Bench judgment of this Court in A.V.U.Engineers Private Limited v. Commissioner (CT), Hyderabad[6], held that the appellate authority did not have the power to condone the delay in preferring an appeal under the VAT Act beyond the period of 60 days. On the question whether the period during which the writ petition was pending before the High Court should be excluded, in computing the period prescribed in filing an appeal, the Division Bench held that the mere fact that the earlier writ petition was pending admission for some time did not confer any right on the petitioner to have the period, during which the writ petition was pending admission before this Court, excluded in computing the period of limitation for preferring an appeal under Section 31(1) of the VAT Act. This Court further held that, in any event, since the earlier Division Bench had not directed the appellate authority to condone the delay or to exclude the period during which the writ petition was pending admission before the Court, a subsequent Division Bench could not sit in judgment over the earlier order passed by a coordinate Division Bench. In the present case also the Division Bench of this Court, while permitting the petitioner to withdraw W.P.No.23937 of 2008 to avail the alternate remedies under the Act, did not accede to the petitioner’s request to condone the delay in filing the appeal, and merely observed that it was for the appellate authority to consider the said submission in accordance with law. Following the judgment of this Court in M/s.Agarwal Industries Private Limited, we negative the petitioner’s request that the period, during which the writ petition was hitherto pending, should be excluded in counting the period of limitation for preferring the appeal before the second respondent. The order of the second respondent accords with law, and does not necessitate interference in proceedings under Article 226 of the Constitution of India. The writ petitions fail and are, accordingly, dismissed. However, in the circumstances, without costs. ________________ (V.V.S. RAO, J) ______________________________ (RAMESH RANGANATHAN, J)

28.04.2011 KH