2010 (12) TMI 1102 - HC - VAT and Sales Tax

Order of the second respondent/Tribunal dated March 6, 2003 refusing to condone the delay of 490 days in filing the appeal before the first respondent challenged Held that - We have no hesitation to hold that the mode of service resorted to by the respondents, viz., by registered post with acknowledgment due to serve the order of the revised assessment on the petitioner was perfectly justified. Insofar as the stand of the petitioner that even such service by registered post with acknowledgment due was not properly made, the same was extensively considered both by the Appellate Assistant Commissioner as well as the second respondent Tribunal and they found that there was no substance in the said stand of the petitioner. No hesitation to hold that the mode of service resorted to by the respondents, viz., by registered post with acknowledgment due to serve the order of the revised assessment on the petitioner was perfectly justified. Insofar as the stand of the petitioner that even such service by registered post with acknowledgment due was not properly made, the same was extensively considered both by the Appellate Assistant Commissioner as well as the second respondent Tribunal and they found that there was no substance in the said stand of the petitioner. Appeal dismissed.

Summary

Issues:
Delay in filing appeal before the Appellate Assistant Commissioner challenging the order of assessment, Service of notice through registered post, Invocation of penalty under section 12(3)(b) of the Act, Jurisdiction of the court under article 226 to examine the correctness of the order on merits.

Analysis:
1. Delay in filing appeal: The petitioner challenged the order of the Tribunal dated March 6, 2003, which refused to condone the delay of 490 days in filing the appeal before the first respondent. The Appellate Assistant Commissioner rejected the appeal for condonation, leading to the petitioner approaching the Tribunal, which also dismissed the appeal. The petitioner contended that the limitation for filing the appeal should start from the date of knowing about the revised assessment order, based on recovery proceedings taken.

2. Service of notice through registered post: The petitioner argued that the notice served through registered post was not effective as it was not served in person. However, the court held that rule 52(1) of the TNGST Act allows for multiple modes of service, and the service through registered post with acknowledgment due was justified. Both the Appellate Assistant Commissioner and the Tribunal found no substance in the petitioner's claim regarding the service of notice.

3. Invocation of penalty under section 12(3)(b) of the Act: The petitioner raised concerns about the imposition of penalty under section 12(3)(b) while the notice for revision was issued under section 16 of the Act. The court ruled that since the appeal was denied on the ground of limitation, the correctness of the penalty imposition could not be examined on its merits. Mentioning a wrong provision does not take away the court's jurisdiction if it is otherwise vested in law.

4. Jurisdiction of the court under article 226: The petitioner invoked the writ jurisdiction of the court under article 226 to challenge the order. However, the court emphasized that the remedy under article 226 cannot be used to bypass the period of limitation. The court reiterated that the authority has the power to levy penalty under section 16(2) of the Act, and mentioning section 12(3)(b) does not disentitle the authority from imposing the penalty.

In conclusion, the court found no merits in the writ petition and dismissed it along with the associated petition. The court emphasized that the remedy under article 226 cannot be misused to circumvent the period of limitation. The judgment reaffirmed the authority's power to levy penalties under the relevant sections of the Act and clarified that mentioning a wrong provision does not impact the court's jurisdiction if vested in law.