TMI Blog1984 (7) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... mentions the particulars of the date of assessment order and the delay in filing the appeal in each case: --------------------------------------------------------------------------------------------------------------------------------------------------- T.R.C. Number Tax Appeal Date of service Delay in filing the Number of the order of appeal assessment --------------------------------------------------------------------------------------------------------------------------------------------------- Year-Month-Days T.R.C. 108 of 1982 372/79 15-10-1974 3-9-26 " 109 of 1982 373/79 24-12-1975 2-7-21 " 85 of 1982 374/79 30-11-1976 1-8-11 " 87 of 1982 375/79 14-7-1975 0-3-05 " 106 of 1982 376/79 28-5-1976 2-2-01 " 105 of 1982 377/79 26-4-1977 1-3-03 --------------------------------------------------------------------------------------------------------------------------------------------------- The Assistant Commissioner refused to condone the delay, and dismissed the appeals as barred by limitation, whereupon the respondents carried the matter in appeal to the Sales Tax Appellate Tribunal. The Tribunal condoned the delay holding that there was s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eral Sales Tax Rules were served on the respondents calling for their written objections, if any, to the proposed turnovers. The respondents filed their replies stating that they have no objection, whereupon the assessments were completed. The second fact to be noticed is that, by the date of service of the assessment orders, in four tax revision cases, i.e., T.R.C. Nos. 108, 109, 87 and 106 of 1982, the decision of the High Court aforesaid (dated August 24, 1976, in Nooka Agaiah v. Government of Andhra Pradesh [1977] 39 STC 521; 1977 Tax LR 2067) was not delivered. Only in two cases, i.e., T.R.C. Nos. 85 and 105 of 1982, were the assessment orders served after the High Court rendered its decision. Indeed, it is doubtful whether the respondent in T.R.C. No. 85 of 1982 knew of the High Court's judgment by November 30, 1976, when he received the order of assessment. However, in the absence of any material in that behalf, we shall presume that he knew of the High Court's judgment rendered in August, 1976, when he received the order of assessment on November 30, 1976, and, therefore, decided not to file an appeal in view of the judgment of the High Court. So far as the respondent in T. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the tax has been collected from the respondents without the authority of law and that this circumstance should also be taken into consideration by the appellate authority while considering the question of condoning the delay. He relied upon certain decisions of this court, which we shall refer to presently. Ordinarily, whether there is sufficient cause for condoning the delay in preferring an appeal is a question of fact; but, in the circumstances of this case, it has practically become a question of law. The question is, whether a subsequent decision of the Supreme Court, which establishes that a dealer has been subjected to tax contrary to law, furnishes a sufficient cause for condoning the delay in preferring the appeal, where the dealer had decided not to file an appeal within the prescribed time, in view of the then prevailing position of law. In this connection, it is necessary to notice the remedies available to the Department in a converse case. Such a survey would serve as a back-drop to the discussion of the question in issue herein. Take a case where the assessing or the first appellate authority has held certain goods not exigible to tax, or subjected them to a lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the appellate order, as the case may be, has become final, that he has been subjected to levy of tax without the authority of law, i.e., contrary to law. Where tax has been levied and paid under a mutual mistake as to law, a suit or writ petition can be maintained within three years from the date of discovery of the mistake, for refund of the amount vide State of Kerala v. Aluminium Industries Ltd. [1965] 16 STC 689 (SC), but, where the question has been put in issue and has been gone into and decided by the appropriate authority, it cannot be said that the tax was paid under a mutual mistake and, in such a case, a suit or writ will not be maintainable, and the only course open would be to file an appeal or apply for revision, while asking for condonation of the delay in filing the appeal or revision, as the case may be: vide Kamala Mills Ltd. v. State of Bombay [1965] 16 STC 613 (SC). Again, where there are questions of fact to be gone into, the writ or suit may not be a proper remedy, as pointed out by the Supreme Court in State of Madhya Pradesh v. Bhailal Bhai [1964] 15 STC 450 (SC); AIR 1964 SC 1006, and an unreported decision of this court dated September 21, 1982, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessees is to prefer an appeal or revision, as the case may be, along with a petition for condoning the delay, on the ground that in view of the position of law obtaining on the date of receipt of the impugned order, they decided not to file an appeal; but, since the subsequent decision establishes the said assumption to be incorrect, and further that the tax has been illegally collected from them, they are now preferring the appeal and that the same should constitute " sufficient cause " within the meaning of the proviso to sub-section (1) of section 19, or sub-section (2) of section 21, or the proviso to sub-section (1) of section 22, as the case may be. The observations in Kamala Mills Ltd. v. State o Bombay [1965] 16 STC 613 (SC), make this position clear. While holding that section 20 of the Bombay Sales Tax Act completely barred suit, the Supreme Court observed (pp. 633-34): " 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 shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the authority or paid the tax under a mutual mistake. This is the view taken by this court in two unreported cases, viz., (i) T.R C. Nos. 1 to 6 of 1968, disposed of on March 12, 1970 ; and (ii) T.R.C. No. 1 of 1967, disposed of on March II, 1970. A learned single judge of the Delhi High Court also has taken the same view in B. L. Grover v. Union of India, AIR 1980 Delhi 45, a case arising under the Arbiration Act and the Limitation Act. We shall now refer to the cases relied upon by the learned Government Pleader in support of his contention that such a subsequent judgment cannot constitute a sufficient cause for condoning the delay in filing the appeal. In Andal Sweet Stall Tiffin Dining Hall v. State of Tamil Nadu [1981] 48 STC 551, a Bench of the Madras High Court has taken the view that a judgment pronounced by a court long after the expiry of the period of limitation cannot be taken advantage of for filing an appeal with petition to excuse the delay in filing the appeal. Unfortunately, the observations of the Supreme Court in Kamala Mills Ltd. v. State of Bombay [1965] 16 STC 613 (SC), referred to above, were not brought to the notice of the Bench which decided this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeal, but that the limitation has been allowed to expire without the appeal being filed, must be traced to a cause arising within the period of limitation it observed. Basing upon the above observations, the learned Government Pleader contended that the assessees in this case took a conscious decision not to file an appeal within a period of thirty days after receiving the orders of assessment, and because the judgment of the Supreme Court is a fact arising subsequent to the expiry of the period of limitation, it cannot constitute a sufficient cause. We are not prepared to agree with his submission. The reason why the assessees in T.R.C. Nos. 85 and 105 of 1982 decided not to file appeals was, an explained hereinbefore, the decision of this court dated August 24, 1976 (reported in Nooka Agaiah v. Government of Andhra Pradesh [1977] 39 STC 521 ; 1977 Tax LR 2967), which was a fact existing even prior to the expiry of the period of limitation prescribed for filing the appeals by these two assessees. For the above reasons, we hold that the Tribunal was right in holding that the assessees-respondents in T.R.C. Nos. 85 and 105 of 1982 had sufficient cause for not filing the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
