VENKATESA SPINNERS P LTD Vs. COMMERCIAL TAX OFFICER

JUDGEMENT

(1.) By consent of both parties writ petitions themselves are taken up for disposal. Aggrieved by the assessment order of the first respondent in CST.No. 611119/2000-2001 dated 3-9-2002, Venkatesa Spinners (Private) Limited, Udumalpet have filed Writ Petition No. 10270/2003. The same petitioners aggrieved by the order of the 2nd respondent Appellate Assistant Commissioner (CT), Pollachi in M.P.No. 193/2002 dated 4-2-2003, dismissing the M.P. which was filed to condone delay and rejecting the appeal as not maintainable, filed Writ Petition No. 10271/2003. In Writ Petition No. 10272/2003 the same petitioner has prayed for issuance of mandamus directing the second respondent to entertain the appeal of the petitioners in M.P.No. 193 of 2002 and dispose of the same on merits. Since the relief prayed for in all the three writ petitions is inter-connected, they are being disposed of by the following common order.

(2.) Against the assessment order of the first respondent in CST No. 611119/2000-2001 dated 3-9-2002, the petitioner preferred an appeal before the appellate authority, namely, Appellate Assistant Commissioner (CT) Pollachi, 2nd respondent herein by way of an appeal under Section 31 of Tamil Nadu General Sales Tax Act, 1959 read with Section 9(2) of the Central Sales Tax Act, 1956. It is the claim of the petitioner that the demand was served on 5-9-2002 and the petitioners presented their appeal in the Office of the 2nd respondent on 5-11-2002. It is not disputed that the statutory period for preferring appeal under Section 31 of the Tamil Nadu General Sales Tax Act, 1959 is 30 days from the date of service of the demand. It is also not disputed that the second respondent is vested with power to condone delay upto a further period of 30 days. I have already referred to the fact that the petitioner has preferred the appeal in the office of the second respondent on 5-11-2002 i.e., within the statutory prescribed period. No doubt, the petitioner has filed the appeal with a petition to condone delay. The 2nd respondent after holding that no reasons have been explained for causing the delay and also of the fact that the petitioner did not enclose the receipt for payment of the admitted tax liability along with the appeal grounds, dismissed the said petition and rejected the appeal as not entertainable. There is no dispute that the aggrieved party has remitted by way of appeal and the same has to be filed within 30 days from the date of service of the demand/order. It is also not disputed that the authority is vested with power to condone the delay of further period of 30 days. No doubt, after expiry of 30+30 = 60 days, the appellate authority has no power to condone the delay. Even according to the respondents, there is no dispute regarding the filing of the appeal by the petitioner/appellant on 5-11-2002 which is within the permissible period. No doubt, the appellant had not enclosed proof for payment of admitted tax amount.

(3.) First I shall consider whether the petitioner/appellant had sufficient cause for condonation of delay. In the affidavit filed in support of the said application, it is stated that one of their staff who was looking after the sales-tax work had left the petitioner company in the month of April, 2000 and thereafter, there was no to take care of the sales-tax work of the company. It is also stated that the office premises was being re-organised and only after service of the demand, the petitioners were able to search the office papers and discovered the show cause notice. It is seen that even after presentation of their appeal and the petition for condonation of delay, the appellate authority, namely, the office of the second respondent returned the papers on 19-11-2002 stating that the petitioners ought to have paid 12.5% of the disputed tax as per Act 32 of 2000. It is seen that the petitioners thereafter deposited 12.5% of the disputed tax on 24-12-2002-vide D.D.No. 550484 dated 23-12-2002. On payment of the said 12.5% of the disputed tax, the petitioners re-presented their appeal along with the petition to condone the delay in the payment of disputed tax on the ground of financial hardship. In support of the delay in payment of 12.5% the explanation of the petitioner was financial commitment such as payment of bonus and other benefits to the employees. It is also stated that currently the petitioners are not carrying on their regular manufacturing activity, but are only involved in the job work of conversion of raw cotton into cotton yard. It is seen from the order of the second respondent that all the material details namely the reasons for not filing appeal within 30 days however within the permissible period and the reasons for not depositing 12.5% of the disputed tax as per the amended Act 32/2000 have been brought to the notice of the 2nd respondent. In the light of the reasons, I am of the view that the 2nd respondent ought to have accepted the same and condoned the delay and disposed of the appeal on merits one way or other. For the sake of repetition, it is to be noted that the appeal papers were presented in the office of the 2nd respondent within the permissible period (30+30=60) i.e., on 5-11-2002. The non enclosure of the receipt for payment of 12.5 per cent of the disputed tax is an incidental one and merely because the same has not been filed along with the appeal grounds and the said amount was paid later, it would be construed that the appeal has filed by the petitioner is not entertainable/maintainable. I am satisfied that the petitioner had sufficient cause and considering the fact that the appeal with condonation petition was filed within the prescribed period, the second respondent ought to have condoned the delay and accepted the appeal. In similar circumstance, K.P. Sivasubramaniam, J., in W.P.Nos. 42821 and 42822/2002 dated 29-11-2002 (M/s. Veni Metal Stores, Coimbatore vs. The Addl. Appellate Assistant Commissioner (CT), Coimbatore-18), after holding that proper reasons have been made out for the delay in remittance of the deposited amount, condoned the delay and directed the appellate authority to take the appeal and dispose it on merits.