2004 (4) TMI 542 - HC - VAT and Sales Tax

Summary

Issues:
Challenge to assessment order not served, Limitation period for appeal, Power of appellate authority to condone delay, Jurisdiction under article 226 of the Constitution.

Analysis:
1. The petitioner, a registered dealer, challenged the assessment order for the year 1998-99, claiming it was not served on him. The Tribunal confirmed that the order was served via registered post on May 17, 2000, placing the appeal beyond the limitation period.

2. The petitioner contended that the limitation period should start from when the certified copy was issued, making the appeal timely. However, the Postal Department's letter indicating delivery to the addressee created a presumption of service, which the petitioner's representative's affidavit did not rebut.

3. The High Court noted that factual conclusions by the appellate authority and Tribunal are binding, and it cannot alter them in a writ jurisdiction. The assessment order was deemed served through registered post, justifying the dismissal of the appeal due to being out of the limitation period.

4. The petitioner argued that even if the appeal was time-barred, the appellate authority could condone the delay beyond 30 days. However, a previous division Bench decision clarified that the authority lacks jurisdiction to condone delays exceeding 30 days, supported by a Supreme Court ruling on the exclusion of the Limitation Act's applicability within a specified period.

5. The petitioner further contended that the original assessment order was flawed and sought its quashing under article 226 of the Constitution. The department opposed, citing the failure to exhaust statutory remedies. The High Court acknowledged its power to intervene without exhausting remedies but noted the petitioner's failure to specifically challenge the assessing authority's order.

6. The Court dismissed the writ petition, emphasizing the absence of merit in challenging the assessment order's service, the limitation period for appeal, and the appellate authority's jurisdiction to condone delays. The petitioner's failure to challenge the assessing authority's order directly impacted the decision under article 226 of the Constitution. The petition was dismissed without costs, closing the related motion.