Appeal filed beyond condonable period after writ proceedings disposal not maintainable

[CA Bimal Jain]

The Hon’ble Andhra Pradesh High Court, in the case of M/S. REDDY ENTERPRISES VERSUS THE APPELLATE AUTHORITY & ADDITIONAL COMMISSIONER (ST) VIJAYAWADA AND 4 OTHERS - 2024 (7) TMI 1064 - ANDHRA PRADESH HIGH COURT held that the appeal filed beyond condonable period after disposal of the writ petition in favour of the Petitioner by granting relief of setting aside of order subject to certain conditions is not maintainable. However, a alternate view has arisen wherein the Hon’ble High Court has relied upon the judgment of the Hon’ble Supreme Court and stated that “the period from the date of filing of the writ petition and the date on which it was dismissed as not entertained should have been excluded, in terms of Section 14 of the Limitation Act.” as in the said case the writ petition was dismissed on account of availment of alternate remedy of appeal.  

Facts:

M/s Reddy Enterprises (“the Petitioner”) against which the Order dated November 10, 2022 (“the Order”) passed by the Revenue Department (“the Respondent”) under Section 74 of the Central Goods and Services Act, 2017 (“the CGST Act”); bypassed the statutory remedy of appeal and filed the writ petition in the Hon’ble High Court of Andhra Pradesh, in the case of REDDY ENTERPRISES VERSUS THE STATE OF AP [2023 (3) TMI 1265 - ANDHRA PRADESH HIGH COURT] wherein it was held that the Petitioner must be given opportunity of the personal hearing, thereby the Impugned Order was set aside, and the matter was remitted back to the Assessing Authority for the decision, with the condition that the Petitioner will deposit 50% of the tax component within the 6 weeks.

Thereafter, the Petitioner challenged the judgment dated March 24, 2023 passed by the Hon’ble Andhra Pradesh High Court by filing the Special Leave to Appeal in the Hon’ble Supreme Court of India, in the case of M/S. REDDY ENTERPRISES VERSUS THE STATE OF ANDHRA PRADESH & ORS. [2023 (5) TMI 1386 - SC ORDER] wherein the Court did not interfere with the Judgment dated March 24, 2023. However, all the contentions of the Petitioner were kept open, and the Assessing Officer of the Respondent was directed to deal with the merits of those objections while passing the reasoned orders. The Petitioner filed the [Interlocutory Application No.2 of 2023 in the REDDY ENTERPRISES VERSUS THE STATE OF AP [2023 (3) TMI 1265 - ANDHRA PRADESH HIGH COURT]] for modification/ relaxation of the condition of deposit of 50% of the tax component of Rs. 23,79,26,090/-. The Petitioner again approached the Hon’ble Supreme Court of India in the case of M/S. REDDY ENTERPRISES VERSUS STATE OF ANDHRA PRADESH & ORS. - 2024 (2) TMI 1445 - SC ORDER permitted the Petitioner to mention Interlocutory Application No.2 of 2023 in the REDDY ENTERPRISES VERSUS THE STATE OF AP [2023 (3) TMI 1265 - ANDHRA PRADESH HIGH COURT] before the Roster Bench of the High Court.

The Petitioner, instead of applying for clarification, had filed Interlocutory Application No.2 of 2023 for modification/ relaxation of the condition of the deposit imposed in the judgment on March 24, 2023 which clearly states that the Petitioner will deposit 50% of the tax component of Rs. 23,79,26,090 /-. Further, the Hon’ble Apex Court had permitted Petitioner only to seek clarification for the payment. However, the Roster Bench of the High Court rejected the Petitioner's Interlocutory Application on February 28, 2024.

The Petitioner challenged the Order dated February 28, 2024 by filing again Special Leave to Appeal before the Hon’ble Supreme Court of India in the case of REDDY ENTERPRISES VERSUS STATE OF ANDHRA PRADESH & ORS. - 2024 (11) TMI 826 - SC ORDER  which was dismissed by the Hon’ble Apex Court.

Further, the Petitioner filed the appeal under Section 107 of the CGST Act before the Appellate Authority without fulfilling the condition of depositing fifty percent of the tax demand. However, the said appeal was rejected by passing of the Impugned Order stating that the appeal has to be rejected as the Respondent is not empowered to hear the appeal beyond the condonable period. Aggrieved by the Impugned Order, the Petitioner filed the writ petition before the Hon’ble High Court.

The Petitioner argued that, in this regard reliance could be placed upon the judgment of the Hon’ble Supreme Court in the case of M/S LAXMI SRINIVASA R AND P BOILED RICE MILL VERSUS STATE OF ANDHRA PRADESH & ANR. - 2022 (12) TMI 822 - SUPREME COURT] wherein it was held that the time period consumed during high court proceedings should be excluded for the purpose of limitation as per Section 14 of the Limitation Act.

In this regard, further reliance is placed upon the judgment of the Hon’ble Andhra Pradesh High Court in the case of M/S. MASTEK ENGINEERING PRIVATE LIMITED VERSUS THE APPELLANT AUTHORITY AND ADDITIONAL COMMISSIONER ST AND OTHERS - 2024 (3) TMI 893 - ANDHRA PRADESH HIGH COURT , and contended that the Petitioner has filed appeal before the appellate authority belatedly and beyond the condonable period which was dismissed. The writ petition was, however, disposed of by this Court, observing that the appeal is a valuable statutory right, and directing the appellate authority to consider and decide the appeal on merits.

Issue:

Whether appeal filed beyond condonable period after disposal of writ proceedings maintainable?         

Held:

The Hon’ble High Court of Andhra Pradesh in the case of M/S. REDDY ENTERPRISES VERSUS THE APPELLATE AUTHORITY & ADDITIONAL COMMISSIONER (ST) VIJAYAWADA AND 4 OTHERS - 2024 (7) TMI 1064 - ANDHRA PRADESH HIGH COURT held as under:

• Observed that, the existence of a statutory remedy of appeal does not preclude the consideration of a writ petition under Article 226 of the Constitution of India. The Petitioner had chosen to file a writ petition, and it was accepted by setting aside the Assessment Order, the Petitioner cannot later file an appeal against that order to avoid compliance with the condition of the deposit of the amount in Writ Petition No. 1433 of 2023 vide judgment dated March 24, 2023.
• Noted that, “In Laxmi Srinivasa R and P Boiled Rice mill (supra) the appellant had filed writ petition which was not entertained on the ground that he should approach the appellate authority. Thereafter, when the appellant approached the appellate authority, the appeal was dismissed holding that the delay was beyond condonable period and the High Court had affirmed the said order, the Hon'ble Apex Court held that the period from the date of filing of the writ petition and the date on which it was dismissed as not entertained should have been excluded, in terms of Section 14 of the Limitation Act. The writ proceedings were maintainable, but not entertained. Thus, there, the writ petition was not entertained. But, here, the writ petition filed by the petitioner was entertained and also disposed of setting aside the order of the assessing authority with directions and imposing the condition on the petitioner to comply, as aforesaid. So, present is not a case of dismissal of the writ petition being not entertained or on the ground of alternative remedy, directing the petitioner to approach the appellate authority”.
• Relied upon, the judgement of the Hon’ble Supreme Court of India in the case of KK. MODI VERSUS KN. MODI - 1998 (2) TMI 566 - SUPREME COURT stating that the Court can strike out or amend pleadings deemed 'an abuse of the process of the Court.' Further, relied upon the judgment of the Hon’ble Supreme Court of India in the case of NEELIMA SRIVASTAVA VERSUS THE STATE OF UTTAR PRADESH & ORS.  - 2021 (9) TMI 483 - SUPREME COURT wherein held that it is not permissible for the parties to reopen the concluded judgments of the Court this may not only abuses the Court's process but also undermines the administration of justice.
• Opined that, the Petitioner cannot file an appeal and start new litigation on the same issue, allowing this would misuse the Court's process and disregard the orders of the writ court in Writ Petition No. 1433 of 2023, which the Hon'ble Apex Court has upheld. When the Petitioner chooses not to pursue the statutory appeal and chooses for the writ petition instead, they are bound by its decision. Appeals can only be made if the writ petition is dismissed on the grounds of seeking alternative remedies or if permission to appeal is granted.
• Held that, the writ petition is dismissed.

Relevant Provision:

Section 14 of the Limitation Act:

“Section 14: Exclusion of time of proceeding bona fide in court without jurisdiction.

(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.

(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.

(3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature.

Explanation.—For the purposes of this section,—

(a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted;

(b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding;

(c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction.

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