STATE OF TAMILNADU Vs. E P NAWAB MARAKKADAI

JUDGEMENT

(1.) THE above tax (revision) cases came up before a Division Bench presided over by the honourable Chief Justice and the Division Bench passed the following order making a reference of all the tax cases to be considered by a Full Bench of three honourable Judges. THE order of reference is as follows:

(2.) TO appreciate the question for decision we must first be conversant with the facts of the case. In all the tax (revision) cases taken out by the Revenue, the facts are more or less common and to avoid repetition we will set out the facts in T.C.No.509 of 1995 and give the corresponding dates in respect of other tax cases in the form of a tabular column. In T.C.No.509 of 1995 relating to an assessment for the year 1986-87 under the Tamil Nadu General Sales Tax Act, 1959 (hereinafter called "the Act"), t he total turnover of the respondent/assessee was fixed at Rs. 13,52,590 by the assessing authority by an order dated December 30, 1988, rejecting the return of the assessee and placing reliance on the inspection made by the enforcement wing officials on August 28, 1986. The order of assessment contained a note that an appeal against the order could be preferred before the Appellate Assistant Commissioner within 30 days of the order. The total tax payable was determined at Rs.67,651 and a penalty of Rs. 18,652 was also levied under section 12(3) of the Act. There was also a levy of surcharge and levy of additional sales tax under the Tamil Nadu Sales Tax (Surcharge) Act, 1971 and the Tamil Nadu Additional Sales Tax Act, 1970 respectively. Though the note prescribed the period of limitation as 30 days from the date of the order, section 31 of the Act only says that the period of limitation is 30 days from the date on which the order was served on the assessee in the manner prescribed. The respondent/assessee was served with the order dated December 30, 1988 only on February 1, 1989. Therefore, the appeal before the Appellate Assistant Commissioner should have been filed on or before March 3, 1989, after paying the admitted tax. While the respondent filed the appeal on March 1, 1989, they paid the admitted tax only on March 30, 1989. Under the first proviso to section 31 of the Act, as it stood at the relevant time, the appellate authority had power to excuse the delay for sufficient reasons only up to 15 days beyond the last date for filing the appeal. The respondent/assessee therefore, filed a miscellaneous petition to condone the delay in filing the appeal. In the instant case, there was a delay of 28 days in payment of the admitted tax, which was construed by the appellate authority as the delay in filing the appeal itself. Since he had no power to excuse the delay beyond 15 days and since the delay in this case was 28 days, the appellate authority refused to condone the delay and dismissed the petition seeking such condonation.

(3.) THE facts and circumstances leading to the other tax (revision) cases filed by the Revenue follow the same pattern except for the dates of filing the appeal and the dates of payment of admitted tax. We have set out below a tabular column giving the necessary dates in respect of each of the tax (revision) cases, except T.CNos. 1483 and 1484 of 1992. Tax Case No. Date of receipt of the assessment order Last date for filing of the appeal Actual date of filing the tax appeal Actual date of payment of the admitted the No. of days of delay in payment of admitted tax 509& 510/1995 1-2-89 3-3-89 1-3-88 30-3-88 28 1380 of 1992 17-12-87 16-1-88 14-1-88 15-2-88 44 1464 fo1992 27-12-86 26-1-87 23-1-87 Tax on 22-1-87 AST & SC on 27-2-87 32 1470 of 1992 29-12-88 28-1-89 2-2-89 20-2-89 23 1482 of 1992 15-4-87 14-5-87 1-6-87 19-10-87 154 1566 of 1992 6-10-88 5-11-88 28-10-88 20-12-88 46 521 of 1993 28-2-89 30-3-89 27-3-89 24-4-89 25 605 & 606 of 93 15-4-89 14-5-89 14-5-89 16-6-89 32 1036 of 1993 18-2-87 20-3-87 6-3-87 16-4-87 27 1089 & 1090 of 93 15-10-88 14-11-88 15-11-88 1-12-88 17