M/S. Bheemaneni Projects vs. The Deputy Assistant Commissioner (St) - Iii
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Cause title — parties, addresses and appearances
The Court made the following: ORDER Counsel for the Respondent Nos.1 to 3 : GP FOR COMMERCIAL TAX Counsel for the Respondent Nos.4 & 5 :----------- Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the writ petition, the High Court may be pleasPd to stay the impugned garnishee notice pending disposal of the writ petition. Counsel for the Petitioner : SRI M. V. J. K. KUMAR
• i Writ Petition No.2706 of 2023 of the 226 2. f UPPRJ & VIPJ A ®f 10 WP Nq.2706 of 2023 HONOURABLE SRI JUSTICE U. DURGA PRASAD RAO AND HON'BLE SMT. JUSTICE VENKATA JYOTHIRMAI PRATAPA "to issue an appropriate Writ or Order or direction in the nature of Writ of Mandamus declaring thg action of the 1^^ respondent in passingj the impugned order of adjudication dated 1?. 04.2022 and rejection order passed by the 2"^ respondent on 07.01.2023, rejecting
the appeal at the admission stage, as illegal, arbitrary, violation of principles of natural justice, contrary to the provisions of GST. Act and Rules 2017, without juri iction authority and contrary to the articles 14, 19 (^) (9)f 71 and 265 of the Constitution of India and consequently to set aside the same and pass such other orders as deemed fit and proper under the circumstances of the case". The writ petition is fiied under Article Constitution of India seeking the following relief: ORDER: (Per Hon'bie Smt. Justice Venkata Jyothirmai Pratapa) The case of the petitioner in nut shell is that: Petitioner is a firrh headed by a woman aged 72 years, engaged in works contracts, by providing services 1.^., running buses to VIT, Amaravathi and Ambulance Services. The petitioner also engaged in supply of goods under GST Act, 2017. The registration of the firm earlier to the introduction of the GST
2 of 10 CST Act, 1956 and Act, notices stating 01 was issued. a Petitioner sent to the petitioner. Commissioner (ST), 21.10.2020, UDPftJ & reply stating that she could 1 prevailing and explained Petitioner also expressed Under the (c) Petitioner has filed a not furnish the details as the Covid was the difficulties to submit the details. I to submit the invoice within few days. statement has been obtained from the CGST and SGST. 10 days time to submit all the . A further show cause notice personal hearing dated 10.03.2022 were The 1®* respondent finally issued final authorized by the Joint a surprise visit on Thereafter, the 1®* respondent issued as escaped from tax and Of turh over for the willingness threat of arrest, petitioner undertaking to pay requested the authority to grant detail?, because of Covid pandemic dated 02.03.2022 and Form No.DRC-OlA was as per Section 74 (5) As the petitioner 2017 was under APVAT Act, 2005, Finance Act 1994 and was subsumed in GST Act, 2017. (b) As Chittor, the 1® respondent made to the petitioner's firm. that certain turnover was the same was treated as suppression Assessment period 07/2017 to 03/2020. issued to pay the tax, penalty and interest of the GST Act, 2017, by the 1* respondent, has not fiied any objections, a show cause notices in Form DRC-
3 of 10 notice and personal hearing on 11.03.2022 to appear before the authority on 21.03.2022. (d) accountant of the firm. pandemic for a period of six months and was on bed r$st fpr onp the impugned order passed by the 1®‘ respondent as accountant viz., Sri V. Dhanesh is absent for seven months. (e) Petitioner filed appeal before 2"^* respondent with a delay of 81 days.
The appeal came to be rejected by the 2"** respondent, since the appeal filed beyond the condonable perlpd of limitation, which is impugned in the present petition. (0 ampunt pf Rs.6,20,05,487/-. The prdpr impugned passed by ampunts, which were paid by the petitioner, were not deducted either in the adjudication order or In the garnishee notice. Petitioner further stated that the matter may be (9) Petitioner though received notice, could not file reply. On 13.04.2022, the 1®‘ respondent passed the impugned 1st respondent has issued a garnishee notice to the respondents Nos. 4 and 5, directing them to pay the disputed & WP No.27Q6of2023 respondent shows the disputed amount as Rs.6,54,67,099/-. The prder. The said order was received by Sri V. Dhanesh, who is The said accountant suffered CovId month. Neither the petitioner firm nor its partners knew about
for the learned Pleader, 4. stage of 5. order 6. 1st respondent. a office. The -------- is to the order 07.01.2023, rejecting the chailehging the assessment passed by the l^t respondent, on the ground that the appeal condonable period of limitation. Heard Sri M.V.J.K.Kumar petitioner . and would submit that the m is a woman of 72 years. firm received the The challenge in this Writ Petition i: passed by the 2"^’ respondent dated appeal filed by the petitioner dated 13.04.2022, admission. As requested by learned counsel on behalf of both parties, the Writ Petition is being disposed of at the admission. Assistant Government representing the respondents for the Commercial Taxes. p & WPNo.2706of2023 remitted to .1« respondent, giving opportunity to petitioner to file necessary material. She has no effective and efficacious alternative remedy, as per the Act, to address her grievance. at the stage of was filed beyond the Learned counsel for petitioner Managing partner of the petitioner's fin Mr. V. Dhanesh, Accountant of the petitioner's assessment order dated 13.04.2022, passed by the But as the accountant suffered from Covid for period of seven months, he could not attend the learned counsel
5 of 10 any knowledge alpout the service of the adjudication order. The Z"'’ respondent summarily rejected the appeal on the ground that it is filed beyond the period of limitation. The disputed tax
Per contra, the learned Government Pleader would rejected the appeal at the admission stage. There are no grounds to set aside the order impugned and prays to dismiss the petition. 8. the 2"*^ respondent for personal hearing and explained the regson for the delay occurred in approaching the Appellate Authority. At this juncture, it Is appropriate to refer Section On perusal of the record. adjudicating authority passed impugned order on 13.04.2022. The order impugned would demonstrate that the authorized representative of the petitioner appeared before 107 of the Act, which speaks about filing of the Appeal. "Number of days prescribed for filing of the appeal against the Assessment Order as per Section 1Q7 (1) of the Act is, three (03) months." involved in this Case is Rs.6,54,67,099/-. Hence, he prays to set aside the impugned order passed by the 2"-“ respondent.
& WP No.2706of2023 partner of the petitioner's firm and other partners do not have submit that when the petitioner filed appeal beyond the condonable period of limitation, the 2"^^ respondent has rightly It is observed that the & & 6 of 10. The order was served on Mr. V. Dhanesh on the very same day. The petitioner Ou^ht to have filed the Appeal by 12.07.2022, but the petitioner filed the appeal on 01.11.2022, with a delay of 112 days.
As per clause (4) of Section 107 of the Act, the period of one month of delay in filing the appeal, can be condoned, for any sufficient reasons^ . After deducting the period of one month, which is a condonable period as per the Act, still the delay of 81 days in preferring the appeal is visible from the record. Respondent No.2 passed order impugned, rejecting the appeal at the admission stage, on the point that the appeal has been filed with a delay beyond the condonable period of limitation.
The medical certificate of Mr. V. Dhanesh is placed on record. No contrary material is filed, refuting the contents of the medical certificate. Indeed, the right of appeal of a party is creature of statute and since, it is a statutory remedy. The right of appeal under Section 107 of the Act is also subject to certain conditions. It is not In dispute that, the 2'^^ respondent has no authority to admit the appeal, when it is filed beyond the condonable period of one month of limitation as per the statute. The petitioner herein expressed her
accountant viz., Mr. Dhanesh. ' (2020) 19 SCC681 "When a Writ petition is fiied chaiienging the order of the authority dismissing the appeal on the ground that it is preferred beyond the condonable period, the petitioner has to substantiate the piea of inability to file appeal within prescribed period." Learned counsel for the petitioner would submit that the petitioner shall be 9iven an opportunity to contest the matter in appeal, against the original assessment order, by putting any condition to deposit same percentage of disputed tax. No prudent man would keep quiet, without filing the appeal against the said order, since, the disputed tax is huge amount in crores of rupees. period of limitation as a matter of course. The Hon'ble Apex Court while dealing with the similar question under Section 35 of AP VAT Act, 2005 In Assistant Commissioner (CT) LTU, Kakinada & Ors. Vs. M/s. Glaxo Smith Kline Consumer Health Care Limited^ held as under:
& 7 of 10 WPNo.2706ofZ023 difficulty in filing the appeal within the time, since she has no knowledge about service of adjudication order on the 11. Needless to say that the High Court cannot exercise its' juri iction under Section 226 of the Constitution of India, where a statutory appeal i$ filed beyond the condonable
8 of Id
As the appeal against the order impugned passed by the respondent is a statutory remedy, such right cannot be allowed to die. Since we are convinced with the inability pleaded by the petitioner, we considered it apposite to dispose of this Writ Petition by imposing suitable conditions.
In the result, this writ petition is allowed and the impugned order dated 07.01.2023 passed by the 2"^ respondent rejecting the appeal filed by the petitioner on the ground that the same was filed beyond the condonable period is set aside and consequently, the delay of 112 days in filing the appeal is condoned subject to the petitioner depositing 20% of the disputed tax in addition to the amount if any already deposited at the time of filing the appeal and paying costs 6f ?10,000/- with the High Court Legal Services Committee within six weeks from the date of receipt of copy of the order, upon which, the 2"^^ respondent shall admit the appeal filed by the petitioner and after affording an opportunity of hearing to both parties, dispose of the appeal in accordance with the governing law and rules expeditiously.
& WPNo.2766 Of 2023
Learned counsel for petitioner formidably urges that the petitioner is aged about 72 years and during the Covid pandemic, she could not pursue the matter, since the accountant is absent for a period of seven months.
9 of 10 |. shall stand closed. //// To, 3. a & VIP,I WP Np.27Q6of2023 K.J. RAJA BABU ASSISTANT REGISTRAR EC^lfoFFI^R 5 *■ S ■
The Deputy Assistant Commissioner (ST) - III, Puttur Circe, Puttur, Chittoor District, Andhra Pradesh.
The Appellate Authority and Additional Commissioner (ST), Tirupati, Chittoor District, Andhra Pradesh. The Principal Secretary, Revenue (CT) Department State of Andhra Pradesh, Velagapudi, Amaravathi, Guntur District, Andhra Pradesh.
One CC to Sri M. V. J. K. Kumar, Advocate [OPUC]
Two CCs to GP for Commercial Tax, High Court of Andhra Pradesh. [OUT]
Two C.D. Copies
The Secretary, AP High Court Legal Services Committee, High Court Buildings, Amaravati. Cnr^ As 9 sequel thereto, miscellaneous petitions, if any.
HIGH COURT DATED:04/07/2023 ORDER WP.No.2706 of 2023 ALLOWING THE W.P. WITHOUT COSTS 2^ % S 16 SEP 2023 g
Reproduced from the public record of the Andhra Pradesh High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.