2018 (1) TMI 458 - HC - VAT and Sales Tax

Condonation of delay in filing appeal - extended period of limitation - Section 38 of TNGST Act, 1959 - whether, this Court is empowered to condone the delay of the extendable period, wherein a specific time limit has been provided, for filing an appeal? Held that - In Chhattisgarh State Electricity Board v. Central Electricity Regulatory Commission 2010 (4) TMI 1031 - SUPREME COURT , the Hon ble Apex Court held that Section 5 of the Limitation Act cannot be invoked by the Court to allow an appeal to be filed, under Section 125 of the Electricity Act, 1963, after more than 120 days. In Saradha Travels v. Commissioner of Service Tax 2014 (7) TMI 884 - MADRAS HIGH COURT , an appeal was filed with a delay of one year and six months. The Tribunal dismissed the appeal. Delay cannot be condoned - petition dismissed.

Issues Involved:
1. Whether the High Court has the power to condone the delay beyond the extended period prescribed under Section 38 of the Tamil Nadu General Sales Tax Act, 1959.

Issue-wise Detailed Analysis:

1. Power to Condon the Delay Beyond the Extended Period:
The primary issue was whether the High Court can condone delays beyond the extended period prescribed under Section 38 of the Tamil Nadu General Sales Tax Act, 1959. The petitioner’s counsel admitted that the Tax Case (Revision) applications were filed beyond the extended period of limitation.

The Court examined several precedents to address this issue:

a. Indian Coffee Worker’s Co-op. Society Ltd. v. Commissioner of Commercial Taxes:
A Division Bench of the High Court held that an appeal under Section 30(1) of the Tamil Nadu General Sales Tax Act, 1959, must be filed within 30 days, and the appellate authority can condone a delay of up to 30 additional days if sufficient cause is shown. Beyond this period, the appellate authority has no power to condone the delay. The High Court, exercising jurisdiction under Article 226 of the Constitution of India, cannot direct the appellate authority to consider an appeal on merits if it was filed beyond the prescribed period, as it would effectively extend the period of limitation, which the Court cannot do.

b. Mohd. Ashfaq v. State Transport Appellate Tribunal, U.P.:
The Supreme Court ruled that when a statute prescribes a specific period for filing an appeal and allows condonation of delay up to a certain limit, the authority cannot condone delays beyond that limit. Section 5 of the Limitation Act does not apply if the special law expressly excludes it.

c. K. Ganesh v. State of Tamil Nadu:
The High Court held that the period prescribed by the Tamil Nadu General Sales Tax Act for filing appeals is clear, and Section 29 of the Limitation Act, which allows for the application of Sections 4 to 24 of the Limitation Act, is expressly excluded by the special law.

d. Kanaka Durga Agro Oil Products Ltd. v. Commercial Tax Officer:
The Court reiterated that if a special statute prescribes a specific period for filing an appeal and allows condonation of delay only up to a certain period, the appellate authority cannot condone delays beyond that period.

e. Union of India v. Popular Construction Co.:
The Supreme Court held that when a statute prescribes a specific period for filing an application and expressly excludes further extension, Section 5 of the Limitation Act cannot be invoked to condone delays beyond the prescribed period.

f. Singh Enterprises v. Commissioner of Central Excise, Jamshedpur:
The Supreme Court ruled that statutory authorities cannot condone delays beyond the period prescribed by the statute. The High Court also cannot condone such delays under Article 226 of the Constitution of India.

g. Commissioner of Customs & Central Excise v. Hongo India (P) Ltd.:
The Supreme Court held that the High Court has no power to condone delays in filing reference applications under Section 35H(1) of the Central Excise Act, 1944, beyond the prescribed period.

h. Chhattisgarh State Electricity Board v. Central Electricity Regulatory Commission:
The Supreme Court held that Section 5 of the Limitation Act cannot be invoked to condone delays beyond the period prescribed by the special statute.

i. Gopinath v. CESTAT, Chennai:
The High Court held that once the period of limitation has expired, the appellate authority does not have the power to condone the delay beyond the maximum period prescribed by the statute.

j. Albert v. Commissioner of Service Tax, Chennai:
The High Court held that the period of limitation prescribed for filing an appeal before the Appellate Tribunal under Section 85(3) of the Finance Act, 1994, cannot be extended.

k. Saradha Travels v. Commissioner of Service Tax:
The High Court held that the Commissioner (Appeals) cannot condone delays beyond the stipulated period.

Conclusion:
Based on the precedents and the statutory provisions, the Court concluded that it does not have the power to condone the delay beyond the extended period prescribed under Section 38 of the Tamil Nadu General Sales Tax Act, 1959. Consequently, the applications to condone the delay were dismissed, and the connected Tax Case (Revision) applications were rejected.

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