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2016 (12) TMI 70 - MADRAS HIGH COURT

2016 (12) TMI 70 - MADRAS HIGH COURT - TMI - Condonation of delay of 120 days - limitation period prescribed in the proviso to Section 36(1) of the Act - Held that: - As per Section 36(1) of the Act, the limitation period for filing appeal by the Government is 120 days, whereas it is 60 days for others. Therefore, it is clear that within 120 days, the Government should have filed appeal. It is further specified that the Appellate Authority is empowered to admit the appeal presented by the Govern .....

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20 days of delay. This clear exclusion renders the appeal filed by the Government beyond the period of 240 days as one barred by limitation. - The condonation of delay period is beyond the period prescribed by the statutory provisions and the same is not legally sustainable and therefore, this Court has come to the conclusion that since the second respondent has filed the appeal beyond the period of limitation as prescribed under Section 36(1) of the Act, the impugned order passed by the fir .....

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ion No.79 of 2004, by the first respondent, as it is arbitrary, illegal, invalid and against the provisions of Section 36(1) of Tamil Nadu General Sales Tax Act, 1959 (hereinafter, it may be referred to as the Act?.) 2. The petitioner Company is a dealer of household appliances and it is an assessee on the file of the Commercial Tax Officer (F.A.C.), West Street Circle, Madurai, and for the assessment year 2001-02 (T.N.G.S.T), their books of account and monthly returns were rejected by their Ass .....

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the portion of the order partly allowing the appeal preferred by the petitioner, the second respondent preferred an appeal along with a miscellaneous petition, in M.P.No.79 of 2004, before the first respondent / Tribunal, to condone the delay of 120 days in filing the appeal. The first respondent / Tribunal, by order, dated 30.04.2009, allowed the condone delay petition and condoned the delay. Challenging the same, the petitioner has filed this writ petition. 3. The learned counsel for the peti .....

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i) within a period of one hundred and twenty days, in the case of an officer empowered by the Government, ii) within a period of sixty days, in the case of any other person from the date on which the order was served in the manner prescribed, appeal against such order to the Appellate Tribunal: Provided that the Appellate Tribunal may, within a further period of one hundred and twenty days in the case of an officer empowered by the Government and sixty days in the case of any other person, admi .....

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sioner (C.T.), Madurai (North), was received by their office on 20.01.2004 and the appeal should have been filed on or before 19.05.2004. But, the appeal was filed only on 16.09.2004 with a delay of 120 days. The petitioner raised an objection to the delay in filing the appeal as it falls outside the condonable period. 5. The learned counsel for the petitioner submitted that as per Section 36(1)(i) of the Act, the limitation period for filing appeal by the Government is 120 days and it is 60 day .....

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acknowledged on the same day. Therefore, it is the contention of the learned counsel for the petitioner that as per the calculation memo, the appeal was filed on 241st day. There was a delay of 121 days falling outside the purview of the Act and and therefore, the authority concerned ought not to have condoned the delay and entertained the appeal. 7. The second respondent has filed a counter affidavit stating that the petitioner has proceeded on a wrong assumption that the appeal was filed 16.0 .....

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04 136 STC 632, wherein, the Hon'ble Division Bench of this Court has held that: the respondent in the appeal is the State, which receives the notices and orders concerning an appeal through its State representative and the service effected on the said representative is the service on the respondent. It is that same respondent-State, which prefers a revision under Section 38 by acting through the Deputy Commissioner. The Deputy Commissioner, therefore, is merely an agent of the State and doe .....

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s and perused the materials produced. 9. The case on hand revolves around the issue of limitation. As per Section 36(1) of the Act, the limitation period for filing appeal by the Government is 120 days, whereas it is 60 days for others. Therefore, it is clear that within 120 days, the Government should have filed appeal. It is further specified that the Appellate Authority is empowered to admit the appeal presented by the Government, after further period of 120 days, if sufficient cause is given .....

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he Government beyond the period of 240 days as one barred by limitation. 10. It is the contention of the petitioner that in the Certificate, dated 26.11.2008, issued by the Appellate Deputy Commissioner, it was certified that the order in A.P.No.103 of 2003, dated 29.12.2003, was served and acknowledged on 19.01.2004 and hence, it is evident that the appeal was filed on 241st day. Therefore, the first respondent / Tribunal ought to have rejected the appeal filed by the second respondent. On the .....

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pport of this contention, the learned counsel for the petitioner has placed reliance upon the decision in Ganesh vs. State of Tamil Nadu, reported in (1988) 68 STC 84, wherein this Court has clearly held that the limitation period prescribed under the provisions of the Act exclusively excludes the application of Section 5 of the Limitation Act, 1963. Therefore, the special law excludes the Limitation Act and it should go only by the import of statutory provisions provided in the Special Law. In .....

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Limitation Act provided that: Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply as if such period were prescribed therefor in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law- (a) the provisions contained in sections 4, 9 to 18 and 22 sha .....

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provided under sub-section (1). After the Limitation Act, 1963 was enacted, section 29(2) was recast and it now stands: Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or .....

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