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Akuluru Venkata Subramanyam Vs. Special Commercial Tax Officer (Evasions) and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAndhra Pradesh High Court
Decided On
Case Number Writ Petition No. 1823 of 1966
Judge
Reported in[1967]20STC249(AP)
AppellantAkuluru Venkata Subramanyam
RespondentSpecial Commercial Tax Officer (Evasions) and ors.
Appellant Advocate S. Dasaratharama Reddy, Adv.
Respondent Advocate D. Venkatapaiah Sastry, Adv. for Principal Government Pleader
Excerpt:
- - the tribunal, therefore, refused to admit the appeal on the ground that the petitioner failed to pay the tax as required under section 21(6) of the act. dasaratharama reddy, contended that the order of the tribunal rejecting his appeal for his failure to pay the tax is erroneous inasmuch as the tax has not been determined by the appellate authority under section 19 as required by section 21(6) of the act......the ground of illness etc., and also filed a petition for stay of collection of the tax. but the appellate authority refused to condone the delay and hence rejected the appeal and consequently dismissed the petition for stay of collection of tax. against the said order of the appellate authority rejecting his appeal, the petitioner preferred a further appeal before the sales tax appellate tribunal on 17th march, 1965. the petitioner filed an independent application before the deputy commissioner of commercial taxes for stay of collection of the tax as he was the only authority having power to grant stay, pending disposal of the appeal before the tribunal.3. the deputy commissioner dismissed the petition for stay stating that he could only continue the operation of stay already granted.....
Judgment:

Krishna Rao, J.

1. This is an application under Article 226 of the Constitution of India for the issue of a writ in the nature of certiorari or other appropriate writ to quash the order of the Special Commercial Tax Officer (Evasions), Vijayawada, in Assessment No. 6416/61-62, dated 4th June, 1964, under the following circumstances.

2. The petitioner is a dealer in paddy and rice. For the year 1961-62 he was assessed to sales tax by the Deputy Commercial Tax Officer, Gudur, on a net turnover of Rs. 2,780.00, but subsequently the Special Commercial Tax Officer (Evasions), Vijayawada, on a scrutiny of the petitioner's books of accounts revised the assessment and levied an additional tax on the basis of an additional turnover of Rs. 38,920.00. Against the said order dated 4th June, 1964, which, was stated to have been received by the petitioner on 26th August, 1964, he preferred an appeal to the Assistant Commissioner (Commercial Taxes), Guntur, on 27th January, 1965, which was received in the office of the Assistant Commissioner on 1st February, 1965. As the appeal was filed out of time, the petitioner filed an application to condone the delay in the presentation of the appeal on the ground of illness etc., and also filed a petition for stay of collection of the tax. But the appellate authority refused to condone the delay and hence rejected the appeal and consequently dismissed the petition for stay of collection of tax. Against the said order of the appellate authority rejecting his appeal, the petitioner preferred a further appeal before the Sales Tax Appellate Tribunal on 17th March, 1965. The petitioner filed an independent application before the Deputy Commissioner of Commercial Taxes for stay of collection of the tax as he was the only authority having power to grant stay, pending disposal of the appeal before the Tribunal.

3. The Deputy Commissioner dismissed the petition for stay stating that he could only continue the operation of stay already granted and that he had no power otherwise. There being no stay of collection of the tax, the petitioner was bound to have proved the fact of payment of disputed tax as a condition for admission of the appeal before the Tribunal under Section 21(6) of the Andhra Pradesh General Sales Tax Act. The Tribunal, therefore, refused to admit the appeal on the ground that the petitioner failed to pay the tax as required under Section 21(6) of the Act. In view of the rejection of the appeal by the Tribunal, the order of assessment passed by the Special Commercial Tax Officer (Evasions) became final and proceedings were thereafter started for recovery of the tax. In addition to this the Deputy Commercial Tax Officer, Gudur, initiated penalty proceedings which were communicated to the petitioner on 8th October, 1966. Against the said order, the petitioner preferred an appeal under Section 19 of the Act before the Assistant Commissioner of Commercial Taxes, Guntur.

4. Thereafter the petitioner filed the present writ petition to quash the original order of assessment passed by the Special Commercial Tax Officer (Evasions), on various grounds praying for stay of recovery of the tax and also penalty and requested further that the appeal filed by him against the order of penalty should be stayed pending disposal of the writ petition, as the validity of the order levying penalty depends upon the correctness of the order of assessment itself impugned in the writ petition.

5. When the writ petition came up for admission the learned counsel amended his petition challenging the order of the Appellate Tribunal. Relying upon a judgment of Gopalakrishnan Nair, J., in W.P. Nos. 580 and 581 of 1964 dated 16th April, 1964-Kavukoti Ekanadham v. The Sales Tax Appellate Tribunal-the learned counsel for the petitioner, Sri S. Dasaratharama Reddy, contended that the order of the Tribunal rejecting his appeal for his failure to pay the tax is erroneous inasmuch as the tax has not been determined by the appellate authority under Section 19 as required by Section 21(6) of the Act. We may now refer to Section 21(6) which reads as follows :

Section 21 (6): Except in a case where a stay is in operation as provided in Sub-section (2-C) of Section 19, no appeal shall be entertained under Sub-section (1), unless it is accompanied by a satisfactory proof of the payment of tax as determined in any appeal under Section 19 or in revision under Section 20.

6. The argument of the learned counsel for the petitioner is that his appeal having been rejected in limine by the Assistant Commissioner of Commercial Taxes, no amount of tax has been determined by him and hence unless there is such, determination by the appellate authority, he is not bound to pay any tax as a condition precedent for the admission of the appeal before the Tribunal. In other words, the contention is that the appellate authority having rejected the appeal in limine on the ground that there is no sufficient cause to excuse the delay in the presentation of the appeal, there was no determination of the tax on merits and that the provisions of Sub-section (6) of Section 21 are not attracted. In support of this contention, the learned counsel for the petitioner relies upon the decision of Gopalakrishnan Nair, J., referred to above. The facts out of which the said ruling arose are as follows :

7. The Commercial Tax Officer passed an order of assessment against which an appeal was preferred to the appellate authority under Section 19 of the Act and along with the appeal, the assessee filed an application before the appellate authority to stay the collection of the tax and the appellate authority granted a short time to enable the assessee to make the payment; but as the assessee committed default in making such payment, the appellate authority rejected the appeal on the sole ground of non-payment of the tax. Thereupon the assessee went in appeal to the Appellate Tribunal which called upon the petitioner under Section 21(6) to pay the amount of tax as a condition precedent for entertaining the appeal, whereupon the said order was challenged in the writ petition. Our learned brother, Gopalakrishnan Nair, J., held that the terms of Section 21(6) relating to deposit of tax and proof of payment thereof would apply only to cases where the appellate authority had determined under Section 19 the tax payable by the assessee and that no such determination having been made in the appeals which were dismissed in limine the provisions of Sub-section (6) of Section 21 were not attracted.

8. Applying the said ruling, the learned counsel for the petitioner has contended that when the appeal is dismissed on the ground that it is time-barred, it has to be held that the appeal itself was not entertained by the appellate authority and that no question of determination of tax on merits arises.

9. We are not, however, inclined to accept his argument because in the case decided by our learned brother Gopalakrishnan Nair, J., the appeal was not at all entertained and it was rejected in limine on the ground that the tax was not paid within the prescribed time. But in the present case the dismissal of the appeal on the ground that it is barred by time stands on a different footing.

10. Sri Venkatapaiah Sastry on behalf of the respondent invited our attention to the ruling in- Mela Ram & Sons v. Commissioner of Income-tax [1956] 29 I.T.R. 607, wherein it was held by the Supreme Court that an order by the Appellate Assistant Commissioner holding that there was no sufficient reason for excusing delay under Section 30(2) of the Income-tax Act and rejecting the appeal as time-barred is an order passed under Section 31 and that an appeal lies from that order to the Appellate Tribunal. It makes no difference whether the order of dismissal is made before or after the appeal is admitted.

11. It was further held that an appeal presented out of time is an appeal and an order dismissing it as time-barred is one passed in appeal.

12. Applying this principle to the instant case we hold that the order passed by the Assistant Commissioner of Commercial Taxes rejecting the appeal as time-barred is an appellate order confirming the original order. Hence the petitioner is bound to pay the said tax as a condition for the registration of the appeal before the Appellate Tribunal. We, therefore, hold that the provisions of Section 21(6) are attracted even in the case of an appeal from an appellate order which merely rejects the appeal as time-barred. Rejection of the appeal on the ground of limitation virtually amounts to confirmation of the tax determined by the original order and hence there is a determination of the tax as contemplated by Sub-section (6) of Section 21 of the Act.

13. We, therefore, dismiss this writ petition with costs. Advocate's fee Rs. 100.

14. When the petition came on for final hearing on 6th April, 1967, the Court made the following order :

ORDER

In view of the fact that the amount has not been paid under some misapprehension, one month's time from the date of receipt of this order for the payment of the amount is granted. On the payment of this amount, the Tribunal will register the appeal.


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