9911796707
TMI Blog2007 (9) TMI 542X X X X Extracts X X X X X X X X Extracts X X X X ..... smissal. That contingency neither was visualised nor did it happen in this case. It is enough if an appeal or revision is filed and pending for consideration. Thus view that the Tribunal has taken a correct view. W.P. dismissed. - - - - - Dated:- 12-9-2007 - RAVIRAJA PANDIAN K. AND CHITRA VENKATARAMAN , JJ. The judgment of the court was delivered by K. RAVIRAJA PANDIAN J. This writ petition is filed by the State against the order of the Tamil Nadu Taxation Special Tribunal, dated January 30, 2004 made in O.P. No. 138 of 2004, whereby the Special Tribunal set aside the order of the designated authority under the Tamil Nadu Sales Tax (Settlement of Disputes) Act, 2002 dated December 19, 2003 non-suiting the petitioner for making an application under the provisions of section 5 of the said Act. The facts of the case are as follows: The first respondent herein was assessed to tax under the provisions of the Tamil Nadu General Sales Tax Act, 1959 (hereinafter referred to as the TNGST Act ) on a total and taxable turnover of Rs. 1,59,90,722 and Rs. 54,46,425, respectively, by an order of assessment dated October 8, 1984 levying tax of Rs. 5,44,643 and a penalty of Rs. 8,1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admission, that only when the case was admitted and taken on record, it could be considered as an appeal pending as on February 28, 2002. Aggrieved by that order dated December 19, 2003, the first respondent filed an original petition in O.P. No. 138 of 2004 on the file of the second respondent, which, by its order dated January 30, 2004, allowed the original petition holding that the first respondent is entitled for a certificate of a settlement. The correctness of the said order is canvassed in the present writ petition by the State. Learned Government Pleader appearing for the State submitted that the Deputy Registrar (Judicial) of the Special Tribunal issued a certificate dated July 14, 2003 in which it was made clear that the tax case (appeal) relating to the assessment year 1983-84 was presented on January 29, 1999 and represented on June 25, 2003 along with an application to dispense with the production of original order of the Joint Commissioner dated November 29, 1991. The appeal filed as early as January 29, 1999 and returned for rectification of the defects was abandoned by the first respondent and only in order to avail the benefit conferred under the 2002 Act, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate, i.e., on February 28, 2007 as per sub-clause (1). Sub-clause (2) further provides that where a revisional authority or an appellate authority has passed an order in the appeal or revision, and was received on the dealer on or before February 15, 2002, and further appeal or revision is filed and pending before the authority, the dealer is entitled to file an application under section 5 of the 2002 Act. The terminology employed in sub-clauses (i) and (ii) of section 4(1) is filed on or before February 28, 2002 and pending [subclause (i)] and filed and pending before making an application under section 5 [sub-clause (ii)]. The terminology filed has not been defined in the Act. The word file/filed has been defined in P. Ramanatha Aiyar's The Law Lexicon, Reprint Edition 1987 as follows: . . . File. As a verb, it means to string, to fasten, as papers, on a line or wire for preservation; to arrange or insert in a bundle, as papers, indorsing the title on each paper (Webster Dictionary); to leave paper with an officer for action or preservation (Meridian National Bank v. Hoyst, etc. Co., 60 Am.St. Rep. 504). . . Filed: Delivered to the proper officer and by him re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edings. A legal proceeding is 'pending' as soon as commenced and until it is concluded, i.e., so long as the court having original cognizance of it can make an order on the matters in issue, or to be dealt with, therein. . . A suit is pending until final judgment is rendered. See 3 I.C. 61 = 5 N.L.R. 88. . . An action is pending the entire time from the beginning of the action, until final judgment has been pronounced and entered up, for until final judgment there cannot be said to be a termination of the action and it is therefore still pending. The word pending has been defined Black's Law Dictionary, Fifth Edition, 1979 as follows: Pending. Begun, but not yet completed; during; before the conclusion of; prior to the completion of; unsettled; undetermined; in process of settlement or adjustment. Thus, an action or suit is 'pending' from its inception until the rendition of final judgment. Pending means awaiting an occurrence or conclusion of action, period of continuance or indeterminacy . . . The word pending has been defined in The Concise Oxford Dictionary, Tenth Edition as follows: Pending. . . 1. awaiting decision or sett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Tvl. Dhamodharasamy Naidu and Brothers, l47, East Arokiasamy Road, Coimbatore, have filed the tax case (appeal) on January 29, 1999 for the assessment year 1983-84. The tax case papers were returned to the petitioner on June 23, 2003 for complying certain defects. After complying the defects, the petitioners have represented the tax case (appeal) papers on June 25, 2003. The said tax case (appeal) is pending before this Special Tribunal as on date. Thus, it is clear from the relevant period that the tax case (appeal) has been filed before the Taxation Special Tribunal and the Special Tribunal received on January 29, 1999 for further process and it has been processed and returned on June 23, 2003 for compliance of certain defects. After complying with the defects, it has been re-presented on June 25, 2003. Thus, it shows that the papers have not been rejected by the Tribunal once and for all. Further, with reference to the terminology employed in the section file and pending , it is impermissible to import any additional word in the provision that in order to be eligible to file an application under section 5 of the 2002 Act, the appeal must be admitted as the word admi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and this determination is possible only after the appeal is heard but there is nothing to prevent a party from filing an appeal which may ultimately be found to be incompetent, e.g., when it is held to be barred by limitation. From the mere fact that such an appeal is held to be unmaintainable on any ground whatsoever, it does not follow that there was no appeal pending before the court. 16. To the same effect is the law laid down by the judgment of this court in the case of Tirupati Balaji Developers (P) Ltd. v. State of Bihar reported in [2004] 5 SCC 1, in which it has been held that an appeal does not cease to be an appeal though irregular and incompetent. The three decisions referred above have been considered by the Supreme Court, which re-affirmed the principle in its later decision in the case of Swan Mills Ltd. v. Union of India reported in [2007] 9 RC 239; [2007] 9 JT (SC) 415. For the foregoing reasons and in the light of the law laid down by the Supreme Court, we are of the considered view that the Tribunal has taken a correct view and we do not find any illegality or irregularity in the order passed by the Tribunal so as to interfere with the same. The wri ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
