TMI Blog2011 (1) TMI 1195X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in this writ petition dated October 11, 2010, was passed by the first respondent. Thereby the petitioner's appeal, under section 31 of the Andhra Pradesh Value Added Tax Act, 2005, was rejected on the ground that the said appeal, filed with a delay of 528 days, could not be admitted. Facts in brief are that the petitioner, a company registered under the Companies Act, is engaged in the manufacture and sale of edible oils. It is registered under the Andhra Pradesh Value Added Tax Act, 2005 (hereinafter called VAT Act ), and the Central Sales Tax Act, 1956. The third respondent passed an order of assessment in form VAT 305 dated November 22, 2008. Aggrieved thereby, the petitioner preferred an appeal to the first respondent on January 8, 2009, which was dismissed by order dated July 18, 2009. The petitioner, thereafter, preferred a second appeal to the Sales Tax Appellate Tribunal (the STAT) on August 3, 2009. The said appeal is said to be still pending before the STAT. The third respondent issued a notice in form VAT 203A dated December 4, 2008, proposing to levy penalty under section 53(3) of the VAT Act. After examining the petitioner's objections thereto, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty under the VAT Act had, necessarily, to condone the delay and entertain the appeal ; as the petitioner has a substantive right of appeal against an order of penalty, such a right must have a remedy on the principle of ubi jus ibi remedium ; the period, during which W. P. No. 2653 of 2009 was pending before this court, must be excluded on the principle of actus curiae neminem gravabit, i.e., the act of the court shall prejudice no one ; and the doctrine of precedence of substantive rights over procedural law would require the appeal being entertained. The learned counsel would rely on Sardar Amarjit Singh Kalra (Dead) by Lrs. v. Pramod Gupta (Smt.) (Dead) by Lrs. [2003] 3 SCC 272 and Sunder Theatres v. Allahabad Bank, Jhansi AIR 1999 All 14. Section 31(1) of the VAT Act enables a VAT dealer to prefer an appeal, against an order of assessment, within thirty days of the order or proceedings being served on him. Under the first proviso thereto, the appellate authority has been conferred the discretion to admit an appeal, preferred within a period of thirty days after the period of thirty days prescribed for filing the appeal under section 31(1) of the VAT Act, if sufficient caus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thirty prescribed in section 19(1), if he was satisfied that the dealer had sufficient cause for not preferring the appeal within that period. The words within a further period of thirty days was inserted to the proviso on its amendment by A. P. Act 8 of 1997. As a result the appellate authority could, within a further period of 30 days, admit the appeal preferred after the period of 30 days if he was satisfied that the dealer had sufficient cause for not preferring the appeal within that period. While considering the amended first proviso to section 19(1) of the APGST Act, the Division Bench of this court, in A. V. U. Engineers Pvt. Ltd. [2005] 142 STC 52 (AP) observed (pages 59, 60, 72 and 73 in 142 STC):- A perusal of the above clearly shows that prior to the amended proviso, inserted by Act 8 of 1997, the appellate authority was given unlimited discretion to condone the delay, if he is satisfied that the dealer had sufficient cause for not preferring the appeal within a period of thirty days. But this unlimited discretionary power conferred on the appellate authority was restricted, confining such power to condone the delay up to a maximum period of thirty days by Act 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the delay, if the authorities satisfied that the dealer was prevented from presenting the appeal within the time prescribed. The Legislature noted that the said unlimited discretionary powers conferred on the authorities had resulted in prolonged litigation thereby affecting the collection of the revenue to the State. In the light of the state of affairs, in order to streamline and simplify the filing and disposal of the appeals before the appellate authorities, the Amendment Act has been brought into existence, under which the unlimited discretionary power vested in the, appellate authorities were curtailed and such power of condonation of delay is restricted to a period not exceeding thirty days in the case of the first appellate authority, and not exceeding sixty days in the case of the second appellate authority (Tribunal) if satisfied that the dealer had sufficient cause for not preferring the appeal within the period. . . (emphasis supplied) When a statute is repealed and re-enacted, and words in the repealed statute are reproduced in the new statute, they should be interpreted in the sense which had been judicially put on them under the repealed Act, because the Legis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid. The Legislature in its wisdom may impose accompanying liability upon a party upon whom a legal right of appeal is conferred or to prescribe conditions for the exercise of the rights. (Sujana Metal Products Limited, Hyderabad v. State of Andhra Pradesh [2008] 11 VST 476 (AP) ; [2006] 43 APSTJ 72 (DB) (AP), Anant Mills Co. Ltd. AIR 1975 SC 1234). Whenever such limitations are imposed, they are to be strictly followed. (Raj Kumar Shivhare v. Assistant Director, Directorate of Enforcements [2010] 253 ELT 3 (SC)). Section 31(1) of the VAT Act, and its first proviso, prescribe a maximum period of 60 days (3,0+30) for an appeal tp be entertained by the appellate authority, and not beyond. As the right of appeal conferred by the VAT Act is subject to the restrictions prescribed therein, and as the delay in the present case of 528 days is far in excess of the maximum period of 60 days within which alone can the appellate authority entertain an appeal under section 31(1), the principle of ubi jus ibi remedium has no application. A substantive right of appeal is circumscribed by the restrictions stipulated in the statute for such an appeal to be entertained and, as such, the doctrine of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
