Reddy Enter Prises vs. The Appellantthe Appellant Authority And Additional Commissioner (St) Auhtority

Whether the copies of judgment may be marked to Law Reporters/Journals

Whether Your Lordships wish to see the fair copy of the Judgment?

The appeal was preferred against the Order of the Assistant Commissioner (ST), Governorpet Circle, Vijayawada-II Division (in Assessing Authority') dated 10.11.2022 for the tax period from 31.03.2022 under the APGST Act, by which the Assessing Authority had levied tax of Rs.27,79,82,874/-, short 'the 01.04.2021 to interest Rs.5,36,10,496 and penalty Rs.23,79,26,090/- in total an amount of Rs.56,95,19,460/-. of 5. Against the same order of the Assessing Authority dated 10.11.2022 passed under Section 74 of the APGST Act, the petitioner initially, bypassing the statutory remedy of appeal, preferred W.P.No.l433 of 2023 {M/s.Reddy Enterprises v. State of A.P & ors.). The writ petition was disposed of vide judgment dated 24.03.2023 holding that the petitioner ought to have been extended some more opportunity for personal hearing. The dated 10.11.2022 was set aside and the matter assessment Order was remitted to the Assessing Authority for decision, on the condition of the petitioner depositing 50% of the tax component within the specified time.

The operative part of the judgment dated 24.03.2023 in W.P.No.l433 of 2023 is as under:

The petitioner preferred SLP(c) No.9616 of 2023 which was disposed of by the HonlDle Apex Court, vide Order dated 17.05.2023, which reads under: as “It IS contended by the petitioner that the entire amounts received by include wages paid, ESI and EPF contributions cannot be included the taxable turnover. The Assessing Officer appears to have rejected this contention on which the petitioner approached the High Court. This Court notices that the High Court has relegated the Assessing Officer who is required to look into the matter afresh. Since the matter is at large, there is no ground for interference. However, all contentions of the petitioner; including substantiation of its objections are kept open. The Assessing Officer shall deal with the those objections while passing the reasoned order. It IS submitted on behalf of the petitioner that more than ?30 crores have been paid. It is open to the petitioner to seek clarification in this regard from the High Court. The special leave petition is disposed of in the above terms. Pending applications, if any, are disposed of” it as a part of matter to the merits of

The Hon'ble Apex Court did not interfere with the judgment dated 24.03.2023. However, all the contentions of the petitioner were kept open and the Assessing Officer was directed to deal with the merits of those objections while passing the reasoned order. Further, in view of the submissions advanced on behalf of the petitioner, as regards payment made of more than Rs.30 crores, it was kept open to the petitioner to seek clarification in that regard from the High Court.

In W.P.No.1433 of 2023 the petitioner filed I. A.No.2 of 2023 for modification/relaxation of the condition of deposit of 50% of the tax component.

The petitioner again approached the Hon'ble Apex Court in Writ Petition (Civil) No. 127 of 2024, in which the following Order dated 26.02.2024 was passed: We are informed across the Bar that the properties subject matter of this Writ Petition is put to auction on 29‘ii February, 2024. We permit the petitioner to mention I. A.No.2/2023 before the Roster Bench of the High Court for immediate listing. We are sure that once it is pointed out to the Roster Bench that the auction is schedule for 29^^ February, 2024, the Roster Bench will give necessaiy priority to the hearing of the said Application.”

I.A.No.2 of 2023 in W.P.No.l433 of 2023 rejected by Order dated 28.02.2024, which reads as under: was considered and WP.No.12355 of2024

Challenging the judgment dated 24.03.2023, the petitioner fded Special Leave to Appeal (C) No(s). 9616 of 2023 which was disposed of by the Hon"ble Apex Court vide order dated 17.05.2023, holding inter alia that there dated 17.05.2023 reads as under: was no ground for interference. The order It is contended by the petitioner that the entire amounts received by it include wages paid. ESI and EPF contributions included as cannot be a part of the taxable turnover. The Assessing Ofifcer appears to have rejected this contention on which thepetitioner approached the High Court. This Court notices that the High Court has relegated the matter to the Assessing Ofifcer who is required to look into the matter afresh. Since the matter is at large, there is no ground for interference. However, all contentions of the petitioner; substantiation of its objections are kept open. The Assessing Ofifcer shall deal with the merits ofthose objections while passing the reasoned order. including It is submitted on behalf of the petitioner that more than Rs.SOCrores have been paid. It is open to the petitioner to seek clariifcation in this regardfrom the High Court. The special leave petition is disposed of in the above terms. "

As is evident from the order of the HoiT'ble Apex Court, it was open to the petitioner to seek clarification. The petitioner instead of •« > applying for clarification has filed I.A.No.2 of 2023 modification/relaxation of the condition of deposit imposed in the judgment dated 24.03.2023. The prayer in I.A.No.2 of 2023 reads under; for as ... it is respectfully prayed that this Hon’ble Court may be pleased to consider the present difficult position ofthe petitioner and relax/modify the condition offurther deposit of 50% of the balance of the assessed tax and direct the 3rd respondent proceed with the assessment proceeding as directed in the order of this Hon 'ble Court dated 24.03.2023... ” to 7. The judgment of this Court dated24.03.2023 in the writ petition No. 1433 of 2023 having been affirmed by the Hon"ble Apex Court, vide order dated 17.05.2023 there is no question of modification or relaxation of the condition of deposit of 50% in terms of the said order. Further, the Hon"ble Apex Court has permitted the petitioner only for elarification of the order.

We have considered I.A.No.2 of 2023 for the clarifieation of judgment dated 24.03.2023. 9. Learned counsel for the petitioner submits that out of total tax assessed ofRs.54,87,51,392/- already paid. So the petitioner has paid more than 50%. an amount of Rs.31,08,18,919/- was 10. The amount of RS.31,08,18,919/- already deposited by the petitioner, is not a deposit after the judgment dated 24.03.2023 or in pursuance thereof. This amount is already adjusted in Assessment Order itself It is the 50% of the the remaining tax in Writ Petition that eomponent under the order impungned was directed to be deposited. A pemsal of para-l 1 of the judgment dated 24.03.2023, makes it very clear that the petitioner was directed to deposit 50% of the tax component of Rs.23,79,26,090/-. In the judgment, specific amount has been mentioned of which 50% was directed to be deposited, the order is veiy clear.

Accordingly, I.A.No.2 of 2023 is rejected.

Challenging the Order dated 28.02.2024, the petitioner preferred SLP(C) No.9869 of 2024, which was dismissed by the Hon'ble Apex Court vide Order dated 06.05.2024, which reads as under: Heard the learned senior counsel appearing for the petitioner. No case for interference is made out in exercise of our juri iction under Article 136 of the Constitution of India. The accordingly dismissed. Pending application also stands disposed of” Special Leave Petition is 13. Thereafter, on 10.05.2024, the petitioner filed

Learned counsel for the petitioner submitted that the delay in filing

Learned counsel for the petitioner has placed reliance in the case of M/s.Laxmi Srinivasa R and P Boiled Rice Mill v. the State of Andhra Pradesh & Anr./ to contend that in that case, the Hon'ble Apex Court held that, the appellant therein was entitled to ask for exclusion of the period consumed in the High Court, in terms of Section 14 of the Limitation Act, 1963. 17. Learned counsel for the petitioner also placed reliance in the case of M/s. Mastek Engineering Private Limited v. the Appellate Authority and Additional Commissioner (ST) & ors.^ to contend that in the said case the petitioner therein had filed appeal before the appellate authority belatedly and beyond the condonable period which was dismissed. The writ petition however, disposed of by this Court, observing that the appeal is a valuable statutory right, and directing the appellate authority to consider and appeal on merits. Submissions nf the learned AflP-

Learned AGP submitted that the impugned order is perfectly legal and Justified. The appellant/petitioner has no sufficient cause for condonation of delay by this Court. The petitioner has was. decide the not complied with the writ Court's SLP(c)No.ll225 of 2022, SC Decided on 14.11.2022 ’ WP.No.4517 of 2024 APHC Decided on 21.02.2024 order dated 24.03.2023 and is not entitled to again invoke the extraordinary writ juri iction.

We have considered the submissions advanced and material on record.

We proceed to consider whether the petitioner is entitled for exclusion of time taken in the writ proceedings from the period of limitation for filing appeal. perused the 21. In M/s.Laxmi Srinivasa R and P Boiied Rice Miii (supra) the HonlDle Apex Court held as under on the point of entitlement to ask for exclusion of the period in terms of Section 14 of the Limitation Act. “It is an accepted position that the appellant had filed a writ petition before the High Court on 24.02.2018, which was not entertained vide the order dated 07.03.2018 on the ground that the appellant should approach the Appellate Authority. The appellant is entitled to ask for exclusion of the said period in terms of Section 14 of the Limitation Act, 1963. Exclusion of time is different, and cannot be equated with condonation of delay. The period once excluded, cannot be counted for the purpose of computing the period for which delay Of course for exclusion of time under Section can be condoned. 14 of the Limitation Act, 1963, the conditions stipulated in Section 14 have to be satisfied. In the facts of the present we find that the period from the date of filing of the writ petition on 24.02.2018 and the date on which it was dismissed case. as not entertained viz., 07.03.2018, should have been excluded. The writ proceedings were maintainable, but not entertained. Bona Tides of the appellant in filing the wnt petition are not challenged. Further, immediately after the dismissal of the wnt petition, the appellant did file an appeal before the Appellate Authority.

In M/s.Laxmi Srinivasa R and P Boiled Rice Mill (supra) the appellant had filed writ petition which he should approach the appellate authority. Thereafter, was not entertained on the ground that when the appellant approached the appellate authority, the appeal was dismissed holding that the delay was beyond condonable period and the High Court had affirmed the said order, the Hon'ble Apex Court held that the period from the date of filing writ petition and the date on which it was dismissed as not entertained should have been excluded, in terms of Section 14 of the Limitation Act. proceedings were maintainable, but not entertained. of the The writ Thus, there, the writ petition was not entertained. But, here, the writ petition filed by the petitioner was entertained and also disposed of setting aside the order of the assessing authority with directions and imposing the condition on the petitioner to comply, as aforesaid. So, present is not a case of dismissal of the writ petition being not entertained petitioner to approach the appellate authority. on the ground of alternative remedy, directing the or 23. In our view, the judgment in the case of M/s.Laxmi Srinivasa R and P Boiled Rice Mill (supra) is distinguishable and is of petitioner for the contention raised. The Honble Apex Court in M/s.Laxmi Srinivasa no help to the proposition of law as laid down by the R and P Boiled Rice Mill (supra) that the exclusion of time is different and cannot be equated with condonation of delay and that the period once excluded cannot be counted for the purpose of computing the period for filing appeal, is well settled, but the said principle of law is not attracted to the petitioner's case herein.

The petitioner is not entitled for exclusion of time on the ground that he filed writ petition, condonation of delay in filing appeal. Abuse of the process of Court;

It is settled in law that the existence of the statutory alternative remedy of appeal is no bar to entertainment of the writ petition under Article 226 of the Constitution of India. Once the petitioner had chosen to file the writ petition and the petitioner's writ petition was entertained, notwithstanding the existence of the statutory remedy of appeal and was decided setting aside the order of assessment, the petitioner cannot now take a 'U' turn and file the appeal against the order of assessment, to avoid making compliance condition of the deposit of the amount as directed in W.P.No.l433 of 2023, vide judgment dated 24.03.2023. 26. We are of the considered view that, the petitioner, prefer the appeal and have a fresh round of litigation on the same subject. Any other view would amount to permit the petitioner to abuse the Court. By permitting the petitioner to avail the remedy of appeal would be to permit the petitioner to bypass and ignore the orders passed by the in W.P.No.1433 of 2023, affirmed by the Hon'ble Apex Court. That cannot be The same is also not sufficient ground seeking with the now, cannot process of the writ court done. That would encourage the litigants like the petitioner to take chance firstly, by filing the writ petition, bypassing the statutory alternative remedy, and if the writ court's order, even if in favour of such petitioner, but by imposing certain conditions, which such petitioner may not intend to comply, then such petitioner shall have another round of litigation by filing statutory appeal. Such a recourse cannot be permitted. Such a practice deserves to be curbed. Once the statutory remedy of appeal was not availed and the petitioner approached the writ court, the petitioner shall be bound by the Order of the writ Court. In our view, it is in those cases, where the writ petition is dismissed or disposed of, on the ground of the alternative remedy or/and with liberty file appeal, the appeal can be filed, and the period consumed in litigating bona fide in writ proceedings can be excluded in computing limitation for appeal, in the light of Section 14 of the Limitation Act and to as held in M/s.Laxmi Srinivasa R and P Boiled Rice Mill (supra). But, not in the case of the present nature.

In K. K. Modi v. K N. ModF the Hon'ble Apex Court in the context of Order 6 Rule 16 of Code of Civil Procedure, which provides that the Court may at any stage of the proceedings, order to be struck out, or amended any matter in any pleading inter alia which is otherwise 'an abuse of the process of the Court', while explaining the phrase 'abuse of the process of the court', cited 'relitigation' as one of the examples as an abuse of the process of the Court. It was observed that it is an abuse of the process of the Court and contrary to '(1998) 3 see 573 justice and public policy for a party to relitigate the same issue which has already been tried and decided earlier against him. The reagitation not be barred as res judicate.' ^u\. if the same issue is sought to be reagitated, it also amounts to an abuse of the process of the court.

It is apt to refer paragraphs - 42 to 44 in K. K. Modi (supra) may or may as under:

Under Order 6 Rule 16, the court may, at any stage of the proceeding, order to be struck out, inter alia, any matter in any pleading which is otherwise an abuse of the process of the court. Mulla in his treatise on the Code of Civil Procedure, (15th Edn., Vol. II, p. 1179, note 7) has stated that power under clause (c) of Order 6 Rule 16 of the Code is confined to cases where the abuse of the process of the court is manifest from the pleadings; and that this power is unlike the power under Section 151 whereunder courts have inherent strike out pleadings or to stay or dismiss proceedings which are an abuse of their process. In the present case the High Court has held the suit to be an abuse of the process of the court on the basis of what is stated in the plaint. ^3.The Supreme Court Practice 1995 published by Sweet & Maxwell in paragraphs 18/19/33 (p. 344) explains the phrase “abuse of the court” thus; power to process of the This term connotes that the process of the court must be used bona fide and properly and must not be abused. The court will prevent improper use of its machinery and will in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation. ... The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances. And for this purpose considerations of public policy and the interests of justice may be very material.”

One of the examples cited as an abuse of the process of the court is relitigation. It is an abuse of the process of the court and contrary to justice and public policy for a party to relitigate the same issue which has already been tried and decided earlier against him. The reagitation may or may not be barred as res Judicata. But if the same issue is sought to be reagitated, it also amounts to an abuse of the process of the court. A proceeding being filed for a collateral purpose, or a spurious claim being made in litigation may also in a given set of facts amount to an abuse of the process of the court. Frivolous or vexatious proceedings may also amount to an abuse of the process of the court especially where the proceedings are absolutely groundless. The court then has the power to stop such proceedings summarily and prevent the time of the public and the court from being wasted. Undoubtedly, it is a matter of the court's discretion whether such proceedings should be stopped and this discretion has to be exercised with circumspection. It is a juri iction which should be sparingly exercised, and exercised only in special cases. The court should also be satisfied that there is no chance of the suit succeeding.” or not;

In Nee/ima Srivastava v. State of Uttar Pradesh^ the Hon'ble Apex Court reiterated that it is not permissible for the parties to reopen the concluded judgments of the Court as the same may not only tantamount to abuse of the process of the Court but would have far on the administration of justice. Paragraph-35 (supra) reads as under: