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TMI Blog2001 (8) TMI 1356X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the tax revision case against the order of the Sales Tax Appellate Tribunal, Hyderabad dated July 20, 1999 in T.A. No. 1028 of 1996. 2.. Since common question of law arises in deciding these C.M.Ps., where delay is sought to be condoned in filing the TRCs under section 22(1) of the Andhra Pradesh General Sales Tax Act, 1957 (hereinafter referred to as, the Act, for brevity), we clubbed all the C.M.Ps., heard the learned counsel and they are being disposed of by this common order. 3.. The common question that arises for decision in all these C.M.Ps. is whether mere change of law subsequent to an impugned order without anything more would constitute "sufficient cause" for seeking condonation of delay in filing revisions under section 22(1) of the Act against such order. 4.. In the affidavit filed in support of C.M.P. No. 11808 of 2001 wherein delay of 463 days is sought to be condoned in filing the tax revision case, it is stated"I submit that the order of the Tribunal was received by my authorised representative on November 18, 1999. I submit that as the Tribunal passed its common order following the judgment of the Supreme Court in Pine Chemicals case [1995] 96 STC 355, I w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing condonation of delay in filing it. The petitioner had to gather the necessary papers from the old records and got the tax revision case drafted on May 1, 2001. In view of the summer vacation the tax revision case is being filed on the reopening day. It is respectfully submitted that non-filing of revision within the time is neither wilful nor deliberate, but only on bona fide belief that filing of tax revision case at that stage will only be futile exercise as the judgment of this honourable Court was against the petitioner. It is submitted that a subsequent decision of the higher court holding the existing law as incorrect can be sufficient cause for condoning the delay in filing the revision inasmuch as it will be futile to file a tax revision case when the law is against the petitioner. In the circumstances, it is just and necessary that the honourable Court may be pleased to condone the delay in filing the tax revision case. The petitioner has fair chances of success in the revision as the Supreme Court has reversed the earlier decision which was adverse to the petitioner." 6. In C.M.P. No. 13512 of 2001 seeking condonation of delay of 186 days in filing the TRC, the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... huduva & Muramura Merchant [1984] 57 STC 179 is a binding authority to state that subsequent change of law would constitute "sufficient cause" to condone the delay in preferring appeal or revision or any other legal action, as the case may be. Learned counsel would point out that the judgment of the Supreme Court in BPL Ltd. v. State of Andhra Pradesh [2001] 121 STC 450 which altered the position of law was delivered by the apex Court on January 9, 2001 and the said judgment was published in March part of STC 2001 and the petitioners without further loss of time presented the above two TRCs on June 28, 2001 and July 21, 2001 in this Court. 8.. Sri Nagendra Chetty, learned counsel appearing for the petitioner in C.M.P. No. 11808 of 2001 while adopting the argument of Sri P. Srinivasa Reddy would point out that the judgment of this Court in Anandi Roller Flour Mills Ltd. v. Commissioner of Commercial Taxes [2001] 122 STC 597 altered the position of law and the said judgment was published only in June 2001 and the petitioner without any further loss of time presented the TRC along with the C.M.P. to condone the delay on June 25, 2001 and, therefore, in the light of the judgment of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the judgment in Anandi Roller Flour Mills case [2001] 122 STC 597 (AP) was delivered, chose to file an appeal against the provisional assessment order and, therefore, the plea of the petitioner that when the impugned order was passed on September 21, 1999, it thought it futile to file the tax revision case in the light of the earlier judgment holding the field, cannot be accepted. 11.. By way of reply, Sri. P. Srinivasa Reddy, learned counsel for the petitioners would contend that the judgment of the Supreme Court in Mafatlal Industries case [1998] 111 STC 467 is distinguishable on facts of this case. 12.. In Venkataramana Chuduva's case [1984] 57 STC 179 (AP) the assessees-dealers in puffed and parched rice, were assessed under the Act, subjecting the turnover relating to puffed and parched rice to tax at 4 per cent under section 5(1) of the Act. No appeals were preferred by the assessees against the order of assessment within the prescribed period in view of the judgment of the High Court in Nooka Agaiah v. Government of Andhra Pradesh [1977] 39 STC 521 holding that puffed and parched rice were not the same commodity as rice and therefore were liable to be taxed as "general ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 STC 613. "Let us, therefore, examine the question as to whether the Act with which we are concerned in the present appeal, provides for a remedy to claim a refund of tax alleged to have been illegally recovered. Section 13 of the Act expressly provides for refunds. It lays down that the Commissioner shall, in the prescribed manner, refund to a registered dealer applying in this behalf any amount of tax paid by such dealer in excess of the amount due from him under this Act. The proviso to this section prescribes a period of limitation of twentyfour months from the date on which the order of assessment was passed or within twelve months of the final order passed on appeal, revision, or reference in respect of the order of assessment, whichever period is later. Then, we have section 21 which provides for the remedy of an appeal; and section 22 which provides for a revisional remedy. It is significant that though section 21(1) prescribes a period of sixty days for appeal and section 22 prescribes a period of four months for revision, under section 22B the prescribed authority is given power to extend the period of limitation if it is satisfied that the party applying for such ext ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court while opining that where a refund is claimed on the ground that the provision of a statute under which it was levied is or has been held to be unconstitutional, such a claim, being a claim outside the purview of the enactment, can be made either by way of a suit or by way of a writ petition, placing reliance on the ratio of the opinion of Hidayatullah, C.J., in Tilochand Motichand case [1970] 25 STC 289 (SC), made an exception to the said principle. It reads: "This principle is, however, subject to an exception; where a person approaches the High Court or the Supreme Court challenging the constitutional validity of a provision but fails, he cannot take advantage of the declaration of unconstitutionality obtained by another person on any other ground; this is for the reason that so far he is concerned, the decision has become final and cannot be reopened on the basis of a decision of any other person's case...." 15.. Although the said exception was made in a different context of that case, the ratio decidendi of the above statement of law is that a litigant who has acquiesced to the decision of the Tribunal or the court, as the case may be, without pursuing further legal re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant was a party and during the pendency of the appeals filed by the appellants and others in the Supreme Court, no petition for condonation of delay was filed nor any reasons set out for the belated filing of the appeals. The condone delay petitions supported by affidavits were filed only after the decision of the Supreme Court in Telangana Industries case [1994] 93 STC 187. It is surprising how the unnumbered appeals were kept pending for so long a time even without a petition for condonation of delay that had occurred by the date of filing of the appeal. Even in the affidavit filed, no explanation was attempted to be given as to why the appeals were filed in April, 1990 with a delay of three years and having filed the appeals, why they were not pursued and allowed to remain in cold storage for four long years thereafter. If the appellant thought that there was no use in filing the departmental appeals during the pendency of the appeals in the Supreme Court and that it is a frivolous exercise there is no reason why it should have thought of filing the appeal in the year 1990 and why the appeals should not have been filed earlier. No such explanation is forthcoming in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assailed in the above writ petitions before this Court, the division Bench held"There is no doubt that there is a delay of more than 4 years in filing the appeal against the order of the Deputy Commissioner passed in exercise of the revisional power on December 10, 1989, but the petitioner had been prosecuting remedy against the said order before the Supreme Court. The writ petitions filed against the said order before the Supreme Court were eventually dismissed in December 1992 and the appeals were filed on March 11, 1994. The reasons given for condoning the delay is that the partner had undergone coronary by-pass surgery. This reason, however, was not accepted as sufficient cause as the date of the surgery was in June, 1992 before the dismissal of the writ petitions filed by the petitioner in the Supreme Court. There is no doubt that the reasons given by petitioners are not wholly satisfactory and there is some element of remis in prosecuting the matter, but having regard to the principles enunciated by the Supreme Court, viz.,- 'There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use" to condone the delay in preferring the tax revision cases. Be that as it may, as already pointed out supra, the mere ground of change of law without any other mitigating circumstances or satisfactory explanation would not constitute "sufficient cause" to condone the delay. 21. It is also pertinent to note that the plea of the petitioners that they thought it futile to file tax revision cases before this Court immediately after the impugned orders were made in the light of the law then prevailing is also not acceptable to us. Should it be noticed at the threshold that the orders made by the Tribunal or the High Court are not final under the Constitution. The order made by the Tribunal is subject to the revisional power of this Court under section 22 of the Act. Similarly the judgments and orders made by this Court are subject to further judicial review by the Supreme Court. If a litigant knowing fully well about this position does not question the order of the Tribunal before this Court or an order of this Court before the Supreme Court and acquiesces to such orders, he cannot be permitted to later reagitate against the order in which he has acquiesced solely on the basis of ch ..... X X X X Extracts X X X X X X X X Extracts X X X X
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