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Deputy Commissioner of Sales Tax (Law) Vs. Marikar Motors (Ltd.) - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKerala High Court
Decided On
Case NumberT.R.C. Nos. 65 and 68 of 1979
Judge
Reported in[1980]45STC106(Ker)
AppellantDeputy Commissioner of Sales Tax (Law)
RespondentMarikar Motors (Ltd.)
Appellant AdvocateThe Government Pleader
Respondent AdvocateS.A. Nagendran; and N.N.D. Pillai, Advs.
DispositionPetition allowed
Cases Referred and Deputy Commissioner of Sales Tax v. Phair Laboratories
Excerpt:
- - it is made clear that the appellate authority will examine the question of delay and if it is satisfied that the grounds are genuine, he will condone the delay and dispose of the appeals on merits......against the assessment orders the assessee who is a dealer in automobiles preferred appeals to the deputy commissioner of sales tax. the appeals were not accompanied by the deposit of the admitted tax due as required by section 34 of the kerala general sales tax act, for that reason, the appeals were dismissed by the deputy commissioner. he took the view that the appeals are not entertainable as the tax had not been paid. for the assessee it was argued that the government had permitted the assessee to pay the tax in instalments and, as such, the appeals are entertainable. this plea was found against by the deputy commissioner. before the sales tax appellate tribunal, the assessee filed two petitions for condoning the delay in not having deposited the tax in time before the deputy.....
Judgment:

V.P. Gopalan Nambiyar C.J.

1. These tax revisions are by the State against the orders of the Sales Tax Appellate Tribunal, Trivandrum. For the assessment years 1974-75 and 1975-76, the assessee was assessed to sales tax. Against the assessment orders the assessee who is a dealer in automobiles preferred appeals to the Deputy Commissioner of Sales Tax. The appeals were not accompanied by the deposit of the admitted tax due as required by Section 34 of the Kerala General Sales Tax Act, For that reason, the appeals were dismissed by the Deputy Commissioner. He took the view that the appeals are not entertainable as the tax had not been paid. For the assessee it was argued that the Government had permitted the assessee to pay the tax in instalments and, as such, the appeals are entertainable. This plea was found against by the Deputy Commissioner. Before the Sales Tax Appellate Tribunal, the assessee filed two petitions for condoning the delay in not having deposited the tax in time before the Deputy Commissioner. The Tribunal stated that they were not adverting to the contention raised by the assessee in these applications which prayed for a remand back to the Deputy Commissioner. The case of the assessee was that the Government had permitted them to pay the tax in instalments. The Tribunal felt that, in view of this case put forward by the assessee, in the interests of justice, it was necessary to set aside the order of the Deputy Commissioner and send the matter back to that authority, with a direction to give the appellants an opportunity to prove their contentions in support of the delay in depositing the tax due, or the explanation for not depositing the tax due along with the appeal. Having so stated, the Tribunal observed:

5. ...So, without adverting to the merits of the contentions, we are setting aside the order of the appellate authority and remitting the files to the concerned appellate authority directing him to dispose of the appeals afresh after giving the appellants an opportunity to file applications for condonation of the delay with proper affidavits before him. The petitions filed before this Tribunal are dismissed as this Tribunal is not the proper forum to examine the question of delay. It is made clear that the appellate authority will examine the question of delay and if it is satisfied that the grounds are genuine, he will condone the delay and dispose of the appeals on merits.

2. We have had occasion more than once to point out the unsatisfactory nature of this type of order of remand passed by the Appellate Tribunal. We have stated the position in Deputy Commissioner of Agricultural Income-tax and Sales Tax (Law), Board of Revenue (Taxes) v.M.K. Ahammed Kutty [1976] 38 S.T.C. 210. The matter was again examined and commented upon in Deputy Commissioner of Sales Tax v. Castle Rock Fisheries [1980] 45 S.T.C. 101 (T.R.C. No. 23 of 1978) and Deputy Commissioner of Sales Tax v. Phair Laboratories [1980] 45 S.T.C. 103 (T.R.C. Nos. 105 to 109 of 1978). They were concerned with additional evidence. Briefly stated, the position explained was this. It is open to the Sales Tax Appellate Tribunal in accordance with the rules for the reception of additional evidence to receive the additional evidence and deal with it itself, or, having received the additional evidence, to direct the lower authority to reconsider the matter in the light of the additional evidence directed to be received by the Tribunal. Even so, in the case of an application to excuse delay, it is open to the Tribunal, as appellate authority, to receive the application which would have been filed before the lower authority, and having received it, it may either dispose of it itself, or direct the lower authority to dispose of it on the merits. Perhaps it could itself excuse delay, thereby passing, as appellate authority, the order which the lower authority should have passed. But, having dismissed the application to excuse delay filed before it, to direct the assessee to file the application before the lower authority, and, for that purpose alone, to set aside the order of the lower authority, is unjustified. We have deprecated the Tribunal passing such type of orders in the decisions earlier referred to. In the light of the principle of those decisions, we allow these revisions and set aside the orders of the Tribunal and remand the matter back to the Tribunal for fresh disposal in accordance with law and in the light of the observations made in this judgment and in the other decisions referred to herein. We make no order as to costs.


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