M/s. Sri Rajeswari Agencies vs The Additional Deputy Commercial Tax Officer-II, Commercial Taxes Department

K.K. Sasidharan, J.—Whether writ petitions filed after the expiry of the statutory period prescribed for challenging the assessment orders are maintainable (that too after filing appeals against those orders belatedly and without challenging the proceedings returning the belated submission of appeals) is the moot question that arises for consideration in these writ petitions at the instance of a petroleum dealer at Puducherry.

The facts:

The petitioner is an assessee on the file of Additional Deputy Commercial Tax Officer II, Puducherry. The matter relates to the assessment years 2006-2007, 2007-2008, 2007-2008, 2008-2009, 2009-2010. The Assessing Officer issued notices to the petitioner proposing to pass orders of assessment. Since the proprietor was not keeping well, objections were not submitted within the prescribed period. The assessing authority thereafter passed separate assessment orders. The petitioner filed statutory appeals challenging the assessment orders after the expiry of the period of limitation. Since the appeals were belated and unaccompanied by applications to condone the delay, the appeals were returned. The petitioner without re-presenting the appeals filed these writ petitions challenging the assessment orders and that too after a period of two to four years.

The Additional Deputy Commercial Tax Officer-II, Puducherry filed a common counter affidavit indicating the issuance of pre-assessment notices and opportunity given to the petitioner to submit its objection. According to the assessing authority, along with the notices the ledger extracts received from the petroleum company were all furnished to the petitioner so as to enable the assessee to file objection. Since the assessee failed to file response within the time indicated in the provisional notices, the Commercial Tax Department was pleased to complete the assessment.

I have heard the learned counsel for the petitioner and the learned Senior Government Pleader appearing on behalf of the respondent.

Analysis:

The petitioner is a petroleum dealer appointed by M/s. Indian Oil Corporation Limited. The petitioner is an assessee on the file of Additional Deputy Commercial Tax Officer-II, Puducherry. The assessing authority rejected the returns filed by the petitioner and proposed to compute the total and taxable turn over. The Assessing Authority issued notices to the petitioner giving thirty days time to submit its response. It is a matter of record that the petitioner failed to submit its response within the prescribed period before the Commercial Tax Department. The Commercial Tax Officer after the expiry of the period indicated in the notices, completed the assessment.

The petitioner filed statutory appeals before the Appellate Assistant Commissioner, Puducherry. The following table would give the details regarding assessment orders, the related appeals and initiation of writ proceedings.

(Table)

The core question is whether it is open to the petitioner to file writ petitions long after the period of limitation prescribed by the statute for challenging the assessment orders and without prosecuting the belated appeals filed before the appellate authority.

There is no dispute that the assessment orders are appealable before the Appellate Assistant Commissioner u/s 47 of the Puducherry Value Added Tax 2007. Section 47 provides that appeal shall be filed within a period of thirty days. The proviso to Section 47(1) of the Act gives further time of thirty days in case the appellant had sufficient cause to explain the delay. Therefore a total period of sixty days is prescribed under the statute to file an appeal.

The petitioner appears to have filed statutory appeals before the Appellate Assistant Commissioner after considerable delay. Even though the assessment orders were made on various dates viz., 10 December 2008 (W.P. No. 27661/2012); 10 June 2009 (W.P. No. 27662/2012); 15 September, 2009 (W.P. No. 27663/2012); 4 November 2009 (W.P. No. 27664/2012) and 12 October 2010 (W.P. No. 27665/2012), the appeals were preferred only on 17 November, 2009, 17 November, 2009, 17 November 2007, 26 March 2010 and 16 November 2010 respectively. The appeal in respect of the assessment order for the year 2009-2010 alone was filed within the outer time limit. The petitioner has not filed any application to condone the delay. This made the appellate authority to return the appeals. It is a matter of record that the writ petitions were filed only on 9 October 2012 which would be about two to four years after passing the assessment orders in question.

The petitioner now wanted this Court to convert it as a forum to condone the delay. In case the appellate authority is not having the power to condone the delay after sixty days, the writ Court would not be justified in giving further extension. Writ proceedings are not for the purpose of granting extension of time.

The law of limitation fixes the life span for legal remedy. It is founded on public policy. The right of appeal is nothing but a statutory right. The said right can be regulated by imposing appropriate conditions. When the right of appeal is circumscribed by a condition that it should be filed within a prescribed period, sufficient cause should be shown to extend the period. The Law of Limitation is not to defeat the right. It is only to curtail the right beyond a particular time. The litigation should come to a finality at a particular point of time.

The jurisdiction under Article 226 is discretionary. Even though there is no prescribed period of limitation for filing a writ petition, still the Courts have imposed certain restrictions in the exercise of jurisdiction under Article 226 of the Constitution of India. The initiation of writ proceedings should not be for the purpose of avoiding the period of limitation. In case the statute does not prescribe a particular period to challenge the order or the matter does not involve any such issues of limitation, writ petition can be filed even with certain amount of delay. In such cases, the only consideration is as to whether there is an element of laches. However, things would be different in case the order impugned in the writ petition was passed by a statutory authority and there is a prescribed period of limitation for filing appeals against the order, including outer time limit, beyond which the appeal would not be entertained. In case, writ petitions are entertained in such matters after the period of limitation, it would appear as if jurisdiction under Article 226 of the Constitution of India is only for extending the period of limitation.

It is trite law that in case the statute prescribed the maximum period of limitation for filing appeal, and a further time, on production of proof regarding sufficient cause for the delay, Section 5 of the Limitation Act would not come to the rescue to extend the period of limitation.

This Court would have considered the larger issues raised by the petitioner including imposition of penalty at 150%, in case the writ petitions were filed before the statutory period prescribed for filing the appeal. The petitioner, by filing the writ petitions, two and in some cases four years after the outer time limit prescribed by the statute for filing appeal, lost the chance to consider the matter on merits.

The Supreme Court on laches with reference to statutory period:-

The Supreme Court in State of Madhya Pradesh Vs. Bhailal Bhai and Others, , held that the maximum period fixed by the Legislature should be taken note of by the Court while considering the question of laches in filing writ petition under Article226 of the Constitution of India.

The Supreme Court said:

The learned counsel is right in his submission that the provisions of the Limitation Act do not as such apply to the granting of relief under Article 226. It appears to us however that the maximum period fixed by the legislature as the time within which the relief by a suit in a civil court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured. This Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the Court to hold that it is unreasonable. The period of limitation prescribed for recovery of money paid by mistake under the Limitation Act is three years from the date when the mistake is known. If the mistake was known in these cases on or shortly after 17-1-1956 the delay in making these applications should be considered unreasonable. (Emphasis supplied)

The Appellate Assistant Commissioner has no power to condone the delay beyond the period of sixty days. It was primarily on the ground of delay that the Appellate Assistant Commissioner has returned the appeals. The petitioner should have challenged the proceedings returning the appeals in case the appeals were returned without any valid reason. The petitioner waited for about two years and in some cases four years even to file writ petitions after the return of appeal memorandums by the Appellate Assistant Commissioner. Since the statute impliedly excluded the provisions of Section 5 of the Limitation Act, in filing an appeal before the Appellate Assistant Commissioner, the writ court would not be justified in entertaining the writ petition after the statutory period.

It is true that there is no fixed period of limitation for initiating proceedings under Article 226 of the Constitution of India. However in cases of these nature, when there is a statutory remedy available to the petitioner which also contain a particular period of limitation and the outer time limit, beyond which delay cannot be condoned, it would not be a sound exercise of judicial power to entertain a writ petition long after the expiry of the limitation. Therefore I do not find any reason to entertain these writ petitions.

It is open to the petitioner to re-present the appeals after complying with the deficiencies pointed out by the appellate authority. It is made clear that the observation made in this order would not stand in the way of the appellate authority from considering the issues raised by the petitioner on merits and as per law, in case the delay is condoned. In the upshot, I dismiss the writ petitions. Consequently the connected Mps are closed. No costs.

(Table) This judgments has been sourced from the court website. The tables in the judgment may not be aligned.