2010 (6) TMI 724 - HC - VAT and Sales Tax

Whether the order passed by the appellate authority as well as the revisional authority rejecting the prayer of the petitioner as barred by limitation are justified in law and are liable to be interfered with in this batch of writ petitions? Held that - The submissions made by Dr. Saraf that the delay in filing the revision petitions by the petitioner to be directed to be condoned cannot be acceded in exercise of power conferred upon the court under article 226 of the Constitution of India and such a direction would amount to a direction to the authority to disobey the provisions of the law as contained in the AGST Act 1993. Appeal dismissed.

Issues Involved:
1. Challenge to the assessment orders dated March 31, 2000.
2. Challenge to the appellate orders dated March 27, 2004.
3. Challenge to the revisional orders dated December 24, 2009, and September 18, 2008.
4. Condonation of delay in filing appeals and revision petitions.

Detailed Analysis:

1. Challenge to the Assessment Orders Dated March 31, 2000:
The Superintendent of Taxes assessed the petitioner under section 17(5) of the Assam General Sales Tax Act, 1993, read with section 9(2) of the Central Sales Tax Act, 1956. The petitioner argued that the assessment was conducted ex parte due to their inability to attend hearings because of the disorderly situation at the tea estate.

2. Challenge to the Appellate Orders Dated March 27, 2004:
The Deputy Commissioner of Taxes (Appeal) rejected the appeals filed by the petitioner against the assessment orders. The petitioner's appeals were delayed by 431, 347, and 321 days for the years 1994-95, 1995-96, and 1996-97, respectively. Despite multiple adjournments and opportunities provided by the appellate authority, the petitioner failed to appear, leading to the dismissal of the condonation petitions and the appeals.

3. Challenge to the Revisional Orders Dated December 24, 2009, and September 18, 2008:
The petitioner filed revision petitions before the Commissioner of Taxes against the assessment orders for the years 1994-95 and 2001-02, which were delayed by more than 4 1/2 years. The revisional authority rejected the petitions on two grounds: (a) the petitioner's negligence in pursuing the appeals despite management issues, and (b) the statutory limitation period of 90 days under section 36(2) of the AGST Act had expired.

4. Condonation of Delay in Filing Appeals and Revision Petitions:
Dr. Saraf argued that the delay in filing appeals and revision petitions was justified due to financial constraints and mismanagement of the tea estate. However, the court found that the petitioner had not established a prima facie case for condonation of delay. The court noted that the petitioner was in physical possession of the tea estate throughout the relevant period, and the judicial orders and other materials did not support the petitioner's claims of loss of control.

Legal Provisions and Interpretation:
Section 36 of the AGST Act, 1993, authorizes the Commissioner to revise orders passed by lower authorities. Sub-section (1) allows suo motu revision within eight years, while sub-section (2) permits revision on application within 90 days from the end of the financial year in which the order was made. The court emphasized that the AGST Act, being a special law, does not provide for condonation of delay under section 5 of the Limitation Act, as the statutory language and legislative intent expressly exclude such condonation.

Court's Conclusion:
The court held that the orders passed by the appellate and revisional authorities rejecting the petitioner's appeals and revision petitions as barred by limitation were justified. The court stated that it could not direct the authorities to disobey statutory provisions by condoning the delay under article 226 of the Constitution of India. Consequently, the batch of writ petitions was dismissed with no costs.

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