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2018 (1) TMI 998 - HC - VAT and Sales TaxCondonation of delay in filing appeal - appeal have been filed beyond the extended period of limitation provided in Section 38 of the then TNGST Act, 1959 - whether, the appellate authority is empowered to condone the delay of the extendable period? - Held that - In Commissioner of Customs & Central Excise v. Hongo India (P) Ltd., 2009 (3) TMI 31 - SUPREME COURT , the Hon ble Apex Court considered a question, as to whether, High Court has power to condone the delay, in presentation of a reference application, under unamended Section 35H(1) of the Central Excise Act, 1944, beyond the prescribed period, by applying Section 5 of the Limitation Act, 1963. After considering the decisions in Singh Enterprises v. CCE, Jamshedpur 2007 (12) TMI 11 - SUPREME COURT OF INDIA , it was held that time limit prescribed u/s 35H(1) is absolute and unextendable u/s 5 Limitation Act. Since court has to respect the legislative intent, limitation cannot be extended u/s 5 of Limitation Act. In Chhattisgarh State Electricity Board s case 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. Delay cannot be condoned - appeal dismissed.
Issues Involved:
1. Whether the appellate authority is empowered to condone the delay beyond the extendable period under the Tamil Nadu General Sales Tax Act, 1959. 2. Whether the High Court has the authority to direct the appellate authority to consider appeals on merits filed beyond the prescribed period. Issue-wise Detailed Analysis: 1. Power of Appellate Authority to Condon Delay Beyond Extendable Period: The court analyzed whether the appellate authority could condone delays beyond the extendable period stipulated under the Tamil Nadu General Sales Tax Act, 1959. The court referenced several judgments to establish that the appellate authority does not have the power to condone delays beyond the prescribed period. Specifically, the court cited the case of *Indian Coffee Worker's Co-op. Society Ltd. v. Commissioner of Commercial Taxes*, where it was held that an appeal must be filed within 30 days, and the appellate authority could only condone a delay for a further 30 days if sufficient cause was shown. Beyond this period, the appellate authority has no power to condone the delay. This principle was reaffirmed by referencing multiple cases, including *Mohd. Ashfaq v. State Transport Appellate Tribunal, U.P.*, *K. Ganesh v. State of Tamil Nadu*, and *Union of India v. M/s. Popular Construction Co.* 2. High Court's Authority to Direct Consideration of Appeals on Merits Beyond Prescribed Period: The court examined whether the High Court could direct the appellate authority to consider appeals on merits if filed beyond the statutory period. The judgment in *Indian Coffee Worker's Co-op. Society Ltd.* was pivotal, where it was determined that the High Court, while exercising jurisdiction under Article 226 of the Constitution of India, cannot direct the appellate authority to consider appeals on merits if filed beyond the prescribed period. The High Court cannot extend the period of limitation or re-write the provisions of the Act, even if it finds the explanation for the delay satisfactory. This principle was supported by various judgments, including *Singh Enterprises v. Commissioner of Central Excise, Jamshedpur*, *Commissioner of Customs & Central Excise v. Hongo India (P) Ltd.*, and *Chhattisgarh State Electricity Board v. Central Electricity Regulatory Commission*, which emphasized that statutory authorities and courts must adhere strictly to the prescribed periods of limitation, and cannot condone delays beyond the periods explicitly allowed by the statute. Conclusion: The court concluded that the appellate authority does not have the power to condone delays beyond the extendable period specified under the Tamil Nadu General Sales Tax Act, 1959. Additionally, the High Court cannot direct the appellate authority to consider appeals on merits if filed beyond the statutory period, as it would amount to extending the period of limitation, which is not permissible. Consequently, the petitions to condone the delay in filing the tax case revisions were dismissed, and the connected tax case revisions were rejected.
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