(Prayer: Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorari calling for the records of the case from the file of the second respondent herein in M.T.A.No.34 of 2002, dated 28.02.2003 for the TNGST 1984-85 and quash the same.)
M. Sathyanarayanan, J.
1. The petitioner in the affidavit filed in support of this writ petition, would aver as follows:
1.1. The petitioner company is carrying on the business of purchase of cotton and manufacture of cotton yarn and is holding the entire 100% share of it's company, namely, Annamalaiar Textiles (P) Ltd., and it is also registered dealer under the Tamil Nadu General Sales Tax Act, 1959 (in short 'TNGST Act'). The petitioner company reported in it's monthly return in Form-I for the assessment year 1984-85 before the first respondent, a turnover of Rs.3,37,94,293.00 and a taxable turnover of Rs.1,79,24,592.00 and paid the taxes along with the return for that assessment year.
1.2. The petitioner company filed a supplementary return during April 1984 including the turnover of cotton yarn on plain reel for Rs.2,72,279.00 taxable at 3% and paid tax of Rs.8,167.00 and it came to be filed during April 1984 for the inadvertent omission to include the above said turnover in the return already filed.
1.3. The petitioner during the very same assessment year, effected transfer of old machinery worth Rs.3,01,609.00 and a generator worth Rs.4,54,401.00, totalling a sum of Rs.7,56,009.91 in favour of it's subsidiary company, namely, Annamalaiar Textiles Pvt. Ltd., and it also bonafidely believed in law that any transfer by the holding company in favour of it's subsidiary company of any capital assets would not be taxable under the provisions of the TNGST Act. Hence, there was no necessity to include the above said transfer in the original return filed for the month of December, 1984 and as per the said return, the company reported a taxable turnover of Rs.8,13,769.00 and paid a sum of Rs.20,708.00 on 24.01.1985 and the supplementary return was filed on 31.01.1985 claiming exemption in respect of the transfer of machinery and the generator to the tune of Rs.7,56,009.91.
1.4. The petitioner company, for the assessment year, 1983-84, had also made a similar transfer and claimed exemption and it was negatived vide assessment order dated 25.04.1985 and it was also imposed with penalty of Rs.2,30,336.00 under Section 12(5) of the TNGST Act. The petitioner preferred an appeal and the Appellate Assistant Commissioner (CT), Madurai North, confirmed the disallowance of exemption and remitted the case to the first respondent for imposing penalty, if any, leviable under Section 12(5) of the TNGST Act.
1.5. The petitioner company being aggrieved by the said order filed appeals before the Sales Tax Appellate Tribunal, Madurai Bench, in M.T.A.Nos.1051 and 1052 of 1985 and vide common order dated 18.08.1986, the Tribunal had set aside the penalty of Rs. 2,33,235.00 and further held that the same could not be taxed at the hands of the petitioner once again if the said turnover was already subjected to tax and accordingly, remanded to the first respondent for granting the relief in the light of the judgment reported in 21 STC 10.
1.6. The petitioner filed Tax Cases 738 and 739 of 1986 and on the constitution of the Tamil Nadu Taxation Special Tribunal, they were transferred and re-numbered as Tax Cases 570 and 571 of 1997 and were dismissed on 19.02.1999 and thereby, levy of penalty was confirmed. The petitioner was under the bona fide belief that it was eligible for exemption and made the similar claim for the assessment year 1984-85 and therefore, did not include the turnover relating to the transfer of machinery and a generator in the original return, but subsequently, claimed exemption through supplementary return.
1.7. The petitioner would further state that the first respondent vide proceedings dated 31.03.1986, issued the pre-assessment notice, wherein he has proposed to levy tax on the turnover relating to the transfer of machinery and a generator made by the petitioner in favour of the subsidiary company to the tune of Rs.4,54,401.00 at 12% single point; the transfer of machinery to the tune of Rs.1,18,285.06 at 8% single point and also penalty of Rs.1,18,937.00 under Section 12(5) of the TNGST Act, stating that the petitioner had claimed exemption in the supplementary return on 01.02.1985 with reference to transfer of machinery made in favour of it's subsidiary company, but failed to show the said items in the taxable column and paid taxes as taxable turnover of first sales along with the return filed relating to the month of December, 1984 and thereby, treating the same as incorrect and incomplete return for the purpose of levying penalty, the petitioner was called upon to file objections within fifteen days from the date of pre-assessment notice served on 09.04.1986. The petitioner after obtaining extension of time had filed it's objections during the first week of May, 1986.
1.8. The petitioner filed W.P.No.4593 of 1986 challenging the legality of pre-assessment notice dated 31.03.1986 and an order of interim injunction was granted on 20.05.1986 and it was also communicated to the first respondent on 26.05.1986. However, the first respondent on receipt of the same, has served the assessment order purported to have been made on 15.05.1986 and on 28.05.1986 confirming the proposals as per the pre-assessment notice, dated 31.03.1986 for the assessment year 1984-85.
1.9. The petitioner on receipt of the order dated 15.05.1986, filed a petition in W.P.No.4593 of 1986 to amend the prayer as well as a petition for ad-interim injunction for the purpose of continuance of the interim order. The petition for amendment was ordered and so also, in the petition for interim order.
1.10. The Tamil Nadu Taxation Special Tribunal was constituted during the month of December, 1995 and the above said petition was transferred to the Special Tribunal, vide order dated 03.07.1997 in T.P.No.136 of 1997, wherein the following order has been passed:
"Since the petitioner has come at the stage of notice, the petition is dismissed as premature, time is granted for filing objection till 30.11.1997".
1.11. According to the petitioner, the said order was communicated to the first respondent and it was under the bona fide belief that it would receive communication from the first respondent as to the filing of the objections. However, no such communication has been received. The petitioner after obtaining legal advice, obtained a copy of the assessment order dated 15.05.1986 and thereafter, filed the appeal before the first respondent on 19.04.1999 and it was returned and the petitioner was directed to get the seal of the office of the first respondent in the said copy and after obtaining the same, it was represented on 13.05.1999.
1.12. The petitioner also filed a separate petition to treat the appeal as filed within the limitation under Section 31 of the TNGST Act by reckoning the limitation from 16.04.1999 and not from 28.05.1986. The Appellate Authority, vide order dated 18.07.2001 had rejected the same as time barred and the petitioner filed further appeal before the Sales Tax Appellate Tribunal in M.T.A.No. 34 of 2002 and it was dismissed on 28.02.2003. The petitioner challenging the legality of the same, filed a Tax Case Revision (SR)No.1620 of 2003 and the same was yet to be numbered and since the precipitative action was taken, the petitioner filed O.P.No. 313 of 2004 praying for stay of further proceedings till numbering of Tax Case by the Special Tribunal, but for want of coram, it could not be numbered and notice was ordered on 16.02.2004.
1.13. The Tamil Nadu Taxation Special Tribunal was abolished and all the matters were transferred to the file of this Court and therefore, the papers were represented and the transferred papers were also numbered as W.P.No.2294 of 2006.
1.14. It is the case of the petitioner that on account of the said reasons, the delay had occurred and it is on account of the genuine and bona fide reasons cited above which are also beyond his control and therefore, prayed for quashment of the order of the second respondent dated 28.02.2003 made in M.T.A.No.34 of 2002.
2. The learned Counsel for the petitioner would submit that admittedly, the order of assessment dated 15.05.1986 was not at all served and after obtaining the certified copy of the assessment order, the appeal was presented and the reasons for the delay have also been explained and despite that, without due and proper application of mind, it was rejected on the ground that it was not filed along with the original order and the huge delay of 4709 days cannot be condoned by the first appellate authority under Section 31(1) of the TNGST Act.
3. The learned Counsel for the petitioner placed reliance on the judgment reported in 2009 VST 581 and would submit that as per the said judgment, from the date of repeal of 1992 Act, this Court will have the jurisdiction to entertain under Sections 37 and 38 of the TNGST Act as the provisions re-merge prior to 1992 Act and in the light of the same coupled with the fact that the petitioner was diligently prosecuting the case, the alleged delay ought to have been condoned and the second respondent ought to have disposed of the appeal on merits and therefore, prays for interference.
4. Mr.R.Karthikeyan, learned Additional Government Pleader appearing for the first respondent has drawn the attention of this Court to the counter and would submit that the final assessment order dated 15.05.1986 was served on the petitioner on 28.05.1986 and it was also confirmed and only after the dismissal of the appeal petition by the Special Tribunal in T.P.No.136 of 1997 on 03.07.1997, the petitioner thought fit to apply for the certified copy of the final assessment order and obtained the same on 16.04.1999 and filed the same on 19.04.1999 after a delay of 13 years and the said delay cannot be condoned in the light of the judgment reported in 95 STC 533 (Madras).
5. Since the petitioner did not diligently prosecute the proceedings and also failed to explain the huge delay of 4709 days, it cannot be condoned and prays for the dismissal of this writ petition.
6. This Court has carefully considered the rival submissions and also scrutinised the materials available on record.
7. The petitioner by filing W.P.No.4593 of 1986, made a challenge to the pre-assessment notice dated 31.03.1986 and obtained an interim order on 20.05.1986 and it was communicated to the first respondent on 26.05.1986 and on receipt of the same, the first respondent served the assessment order dated 15.05.1986 on the petitioner on 28.05.1986 by confirming the proposal as per the pre-assessment notice dated 31.03.1986. Thereafter, the petitioner filed W.M.P.Nos.8069 and 8070 of 1986 for amendment of the prayer and also for ad-interim injunction and they were ordered on 13.08.1986. Therefore, the petitioner was very well aware of the assessment order dated 15.05.1986.
8. The Tamil Nadu Taxation Special Tribunal came to be constituted and the said writ petition was numbered as T.P.No.136 of 1997. The Special Tribunal vide order dated 03.07.1997, has observed that since the petitioner has approached the Tribunal at the stage of notice, dismissed it as premature and time was granted till 30.11.1997.
9. It is pertinent to point out at this juncture that even prior to passing of the order by the Tribunal, the petitioner was very well aware of the assessment order dated 15.05.1986 and therefore, it ought to have been brought to the knowledge of the Special Tribunal, but it was not done so either by the petitioner or by the Revenue.
10. The petitioner after the receipt of the said order, at least, ought to have approached the Tribunal either for modification or review, if it is permissible, but it has failed to do so.
11. According to the petitioner, since the Special Tribunal, vide order dated 03.07.1997, had granted time till 30.11.1997 to file objections, it was waiting for communication from the first respondent. In the considered opinion of this Court, in compliance of the order of the Tribunal, it ought to have submitted the objections and the reason cited that it waited for the communication from the first respondent calling upon him to submit objections, is wholly untenable.
12. The petitioner obtained the certified copy of the assessment order dated 15.05.1986 only on 16.04.1999 and it was returned and thereafter, after getting the attested/signed by the Assessment Officer, represented the appeal papers on 13.05.1999 with a delay of nearly 13 years.
13. It is the specific stand of the first respondent in the counter that the assessment order dated 15.05.1986 was served on the petitioner on 28.05.1986 itself and the said fact is not at all seriously disputed by the petitioner. The first respondent also took a stand that though the Special Tribunal has granted time till 30.11.1997 to file his objections, it did not do so, but factually it did submit the objections to the pre-assessment notice, on 05.05.1986, based on which, the final assessment order was passed on 15.05.1986.
14. Here again, the petitioner did not bring to the knowledge of the Special Tribunal about the filing of the objections to the pre-assessment notice dated 31.03.1986 and despite indulgence shown to file objections on or before 30.11.1997, it did not do so, on the pretext that it was expecting the communication from the first respondent to file objections.
15. Thus, the petitioner had slept over it's rights for the reasons best known to them.
16. The delay is nearly 13 years (4709 days) and incidentally, a question arises for consideration whether such an appeal is condonable or not, even for the sake of argument that plausible explanation has been offered by the petitioner.
17. Section 31 of the TNGST Act speaks about the appeal to the Appellate Assistant Commissioner and as per sub-section (1) of Section 31 of the Act, the appeal is to be preferred within thirty days from the date on which the order was served on him in the manner prescribed and as per the first proviso, the Appellate Assistant Commissioner may, within a further period of thirty days, admit an appeal presented after the expiry of 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.
18. In Quantas Engineers and Promoters (P) Ltd. v. TNTST (Mad) reported in 2003 (131) STC 529, a similar issue arose for consideration and the Division Bench of this Court after placing reliance on the decision in Un of Ind v. Popula Con Co. reported in 2001 (8) JT 271, held that when Section 5 of the Limitation Act is not applicable to the proceedings, Article 226 of the Constitution of India cannot be used as a magic wand to get over the bar of limitation.
19. TNGST Act is the self-contained statute and Section 31(1) and the first proviso of the Act provide a period of limitation (30 days + 30 days) and in the light of the above cited judgment, any period exceeding 60 days cannot be condoned either by the said Appellate Authority or by this Court in exercise of jurisdiction under Article 226 of the Constitution of India.
20. The petitioner is also guilty of delay and laches and even at the time of disposal of T.P.No.136 of 1997 by the Tamil Nadu Taxation Special Tribunal, Chennai, on 03.07.1997, has failed to place the relevant and necessary facts and therefore, the Tribunal on misconstruing the facts, had passed the order as if the objections have not been submitted to the pre-assessment notice dated 31.03.1986 and factually speaking, even at the time of transfer of W.P.No.4593 of 1986 to the said forum, the prayer has already been amended challenging the assessment order dated 15.05.1986 also and admittedly, the petitioner has submitted his objections to the pre-assessment notice dated 31.03.1986.
21. This Court, in the light of the facts narrated above, coupled with the legal position, is of the considered view that the delay in filing the appeal before the Appellate Authority under Section 31 of the TNGST Act cannot be condoned. Even otherwise, the delay of 4709 days in filing the said appeal, has not been properly explained at all.
22. In the result, this writ petition is dismissed, confirming theorder passed in M.T.A.No.34 of 2002, dated 28.02.2003. However,in the facts and circumstances of the case, there is no order as to costs.