TMI Blog2019 (5) TMI 908X X X X Extracts X X X X X X X X Extracts X X X X ..... the first respondent has passed the impugned order mechanically or by total nonapplication of mind. The first respondent has considered the impugned assessment order and only thereafter has passed the impugned order dated 03.04.2018. This Court leaves it open for the petitioner to satisfy the requirements of Section 58(1)(b) of the TNVAT Act, 2006 and satisfy the Tamil Nadu Sales Tax Appellate Tribunal, with sufficient cause for not having filed the appeal within the extended period of 60 days. As and when any appeal is filed under Section 58 of the TNVAT Act against the impugned order dated 03.04.2018, the Tamil Nadu Sales Tax Appellate Tribunal shall decide as to whether the appeal has been filed within the maximum period stipulated under the said Section or not. Petition dismissed. - W.P.[MD]No.6804 of 2019 And W.M.P.[MD]No.5442 of 2019 - - - Dated:- 5-4-2019 - Mr. Justice Abdul Quddhose For the Petitioner : Mr S.Sathiyanarayanan For the Respondents : Mr.N.Shanmugaselvam Additional Government Pleader ORDER ************* The instant writ petition has been filed challenging the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s passed the order dated 03.04.2018. Aggrieved by the order dated 03.04.2018, the petitioner has filed this writ petition. 3.Heard Mr.S.Sathiyanarayanan, learned Counsel for the petitioner and Mr.N.Shanmugaselvam, learned Additional Government Pleader for the respondents. 4.Admittedly, there is an appeal remedy available to the petitioner as against the order dated 03.04.2018 passed by the first respondent in A.P.No.44 of 2018. But instead of filing an appeal on the ground that the impugned order insofar as the allowance of the claim of ITC by the petitioner based on purchases from cancelled dealers is passed by the first respondent, with malafide intention and with blatant violations of the principles of natural justice and established position of law. Further more, the petitioner has filed this writ petition on the ground that the first respondent has passed the impugned order mechanically and without application of mind and he has also not considered the circular of the Commissioner of Commercial Taxes, VAT cell/39009/2017 dated 29.08.2007. 5.This Court now needs to examine as to whether the ground raised by the petitioner amounts to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the TNVAT Act, 2006. Unless and until there is violation of principles of natural justice or the order has been passed without jurisdiction, this Court under Article 226 of the Constitution of India cannot pass orders before the petitioner exercising alternate, efficacious appellate statutory remedy available to him under law. The order has been passed by the first respondent under the TNVAT Act. There is a statutory appellate remedy available to the petitioner before the Tamil Nadu Sales Tax Appellate Tribunal, Madurai, under Section 58 of the TNVAT Act, 2006. Section 58 of the TNVAT Act, reads as follows: Section 58. Appeal to Appellate Tribunal.- (1) Any officer prescribed by the Government or any person objecting to an order passed by the [Appellate Deputy Commissioner] under sub-section (3) of section 51, or by the [Appellate Joint Commissioner] under sub-section (3) of section 52, or by the [Joint Commissioner] under sub-section (1) of section 53, may,- a) within a period of one hundred and twenty days, in the case of an officer so prescribed by Government. b) within a period of sixty days, in the case of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he grievance of the petitioner. Further, the writ petition has been filed on 19.03.2019, whereas the impugned order of the first respondent was passed on 03.04.2018. 11.Under Section 58 (1) (b) of the TNVAT Act, 2006, an appeal against the impugned order dated 03.04.2018 passed by the first respondent will have to be filed within a period of 60 days before the Sales Tax Appellate Tribunal and the proviso to the said Section enables the Sales Tax Appellate Tribunal to entertain an appeal within a further period of 60 days if it is satisfied that the petitioner had sufficient cause for not pressing the appeal within a period of 60 days. Section 58(1)(b) of the TNVAT Act, 2006 reads as follows: 58(1)(b) within a period of sixty days, in the case of any other persons, from the date on which the order was served, 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 prescribed by Government and sixty days in the case of any other person, admit an appeal presented after the expiration of the first mentioned period of on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to pay tax only at 5%. If not for the fact that the first respondent has considered the assessment order, the first respondent would not have partly allowed the appeal filed by the petitioner. Further more, the writ petition has been filed beyond the period prescribed under Section 58(1)(b) of the TNVAT Act. If really the petitioner was a diligent party, he would have filed the writ petition immediately after the receipt of the order dated 03.04.2018 passed by the first respondent but instead has filed the writ petition only on 19.03.2019. 14.The Tamil Nadu Sales Tax Appellate Tribunal under the proviso to Section 58(1)(b) of the Act, 2006, has got the powers to condone delay of filing an appeal only for a period of 60 days. It is settled law that when there is special law, the special law will over ride the general law. In the instant case, the petitioner has approached this Court without filing an appeal under Section 58 (1) before the Tamil Nadu Sales Tax Appellate Tribunal within the prescribed period. Whether or not the petitioner has got sufficient cause for not filing the appeal before the Tamil Nadu Sales Tax Appellate Tribunal under Section 58(1) of the TNV ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
