Karnataka High Court
M/S Bismila Earth Movers vs State Of Karnataka on 16 August, 2023
Author: S.R. Krishna Kumar
Bench: S.R. Krishna Kumar
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NC: 2023:KHC-D:9005-DB
WA No.100412 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 16TH DAY OF AUGUST, 2023
PRESENT
THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
WRIT APPEAL NO.100412 OF 2023 (T-IT)
BETWEEN:
M/S BISMILLA EARTH MOVERS,
DOOR NO.213, 14TH WARD,
TEACHERS COLONY, NEAR KRUPA SCHOOL,
SANDUR, BELLARY DISTRICT-583119,
KARNATAKA, REPRESENTED BY ITS PROPRIETOR:
SRI. CHOPDAR HASSAIN S/O. C. ABDUL SAB,
OCC: BUSINESSMAN, AGE: 49 YEARS,
R/O. DOOR NO.213, 14TH WARD,
TEACHERS COLONY, NEAR KRUPA SCHOOL,
SANDUR, BELLARY DISTRICT-583119,
KARNATAKA.
...APPELLANT
(BY SRI. RENUKAPRASAD AND SRI.PRAKASH R.BADIGER,
ADVOCATES)
AND:
JAGADISH T R
HIGH COURT
1. STATE OF KARNATAKA,
OF REP. BY ITS SECRETARY,
KARNATAKA
2023.08.22 DEPARTMENT OF FINANCE,
14:04:53 VIDHANASOUDHA, BANGALORE-560001.
+0530
2. THE JOINT COMMISSIONER OF COMMERCIAL
TAXES, APPEAL, DAVANGERE DIVISION,
VAJIYA TERIGE BHAVANA, A BLOCK,
DEVARAJ URS LAYOUT,
DAVANAGERE-577002.
3. THE ASSISTANT COMMISSIONER
COMMERCIAL TAXES, AUDIT-1,
VANIJYA TERIGE BHAVANA,
DEVARAJ URS LAYOUT,
A BLOCK, DAVANAGERE-577002.
...RESPONDENTS
(BY SRI.SHIVAPRABHU HIREMATH, ADDL. GOVT. ADVOCATE)
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NC: 2023:KHC-D:9005-DB
WA No.100412 of 2023
THIS WRIT APPEAL IS FILED U/S.4 OF KARNATAKA HIGH
COURT ACT, 1961, PRAYING THIS HON BLE COURT TO, SET ASIDE
THE ORDER DATED 13.06.2023 PASSED IN W.P.NO.103626 OF 2023
(T-RES) BY HON BLE SINGLE JUDGE AND ALLOW THE APPEAL AS
PRAYED IN WRIT PETITION PRAYER.
THIS WRIT APPEAL COMING ON FOR PRELIMINARY HEARING,
THIS DAY, S.R.KRISHNA KUMAR J., DELIVERED THE FOLLOWING:
JUDGMENT
This intra-court appeal by the unsuccessful writ petitioner in W.P. No.103626/2023 is directed against the impugned order dated 13.06.2023 passed by the learned Single Judge whereby the said petition filed by the appellant challenging the impugned order dated 03.06.2023 passed by respondent No.2-Appellate Authority refusing to condone the delay of 59 days in preferring the appeal was dismissed.
2. Heard the learned counsel for the appellant and the learned Additional Government Advocate for the respondents.
3. In addition to reiterating various contention urged in the memorandum of appeal and referring to the -3- NC: 2023:KHC-D:9005-DB WA No.100412 of 2023 material on record, the learned counsel for the appellant submit that, in the case of Simplex Infrastructures Ltd., and Another Vs. The Joint Commissioner and Others (W.A. No.942/2021, disposed of on 03.12.2021), the Division Bench of this Court exercised its power under Article 226 of the Constitution of India and directed the Appellate Authority to condone the delay in preferring the appeal by the assessee. It is submitted that the judgment of this Court in Simplex Infrastructures Ltd., (supra) arising out of provisions contained in Central Excise Act is directly applicable to the facts of the instant case and consequently, the impugned order passed by the learned Single Judge deserves to be set aside.
4. Per contra, learned Additional Government Advocate for the respondents-State submit that, apart from the fact that the said judgment in Simplex Infrastructures Ltd. does not apply to the facts of the instant case, there is no merit in the present appeal and the same is liable to be dismissed in the light of the -4- NC: 2023:KHC-D:9005-DB WA No.100412 of 2023 judgment of the Apex Court in the case of National Spot Exchange Limited Vs. Anil Kohli, Resolution Professional for Dunar Foods Limited1.
5. We have given our anxious consideration to the rival contentions and perused the material on record.
6. In Simplex Infrastructures Ltd., case (supra), the Division Bench of this Court held as under:
"17. In the usual course if the assessee knocks the doors of the Writ Court without exhausting the alternative remedy of appeal available under the Act, no exception can be found with the Writ Court in rejecting the writ petition as not maintainable, but having regard to the peculiar facts and circumstances of the case, as in the present case when the appellants have approached the Writ Court with an alternative relief of seeking permission to file an appeal before the appellate authority, any finding recorded on the merits of the case which indeed relates to facts warrants interference.1
(2022)11 SCC 761 -5- NC: 2023:KHC-D:9005-DB WA No.100412 of 2023
18. Thus, it is clear that in the absence of power vested with the appellate authority to condone the delay, in the peculiar facts and circumstances of the case, the ends of the justice would be met in permitting the appellants to file an appeal instead of adjudicating the matter on merits subject to conditions as aforesaid.
19. For the reasons aforesaid, we pass the following:
ORDER
i) Writ appeal is allowed in part subject to payment of costs of Rs.1,00,000/- (Rupees One Lakh) payable by the appellants to the Chief Minister's Covid-19 Relief Fund within a period of two weeks from today.
ii) The order dated 24.5.2021 passed by the learned Single Judge in W.P.No.10766/2020 is set aside.
iii) Liberty is granted to the appellants to file an appeal before the Commissioner of Central Excise (Appeals) - first appellate authority within a period of four weeks from the date of receipt of certified copy of the order.
iv) In the event of filing such an appeal, subject to pre-deposit as required under law, the appellate authority shall consider the matter on -6- NC: 2023:KHC-D:9005-DB WA No.100412 of 2023 merits without raising objections on the issue of limitation and decide the same on merits in accordance with law in an expedite manner.
v) All the rights and contentions of the parties are left open.
vi) This order being rendered in the peculiar facts and circumstances of the case, the same shall not be treated as a precedent."
7. The said judgment has been followed by the learned Single Judge in the case of M/s. Himalaya Drug Company Vs. Commissioner of Central Tax (Appeals-II) and Another (W.P. No.10142/2021, disposed of on 08.09.2022), wherein it is held as under:
"7. The aforesaid facts and circumstances clearly establish that the petitioner had made out valid and sufficient ground/cause to condone the delay in preferring the appeal before the appellate Authority. It is also clear that the inability and omission on the part of the petitioner to prefer the appeal within the prescribed period was due to bonafide reasons, unavoidable circumstances and sufficient cause. Though it is well settled that Respondent No.1-Appellate Authority does not have power to condone the delay beyond the -7- NC: 2023:KHC-D:9005-DB WA No.100412 of 2023 extended/condonable period of 30 days after expiry of the initial period of 60 days, by adopting justice oriented approach and in order to do complete and substantial justice, in the peculiar/special facts and circumstances obtaining in the instant case and in the light of the material on record which clearly establishes that the delay in preferring the appeal was wholly unintentional and due to valid and sufficient grounds referred to supra coupled with the fact that the petitioner has a good case to urge on merits and the balance of convenience in its favour and in view of the judgment of the Division Bench in Simplex Infrastructure's case supra, I deem it just and appropriate to exercise my powers under Article 226 of the Constitution of India and condone the delay in preferring the appeal by the petitioner by setting aside the impugned order at Annexure-A and remit the matter back to respondent No.1 for reconsideration of the appeal afresh on merits in accordance with law.
8. In so far as the contention of the respondents that the delay ought not to be condoned in view of the judgment of the Division Bench in Lakshmi Electronics case supra is concerned, a perusal of the said judgment will indicate that this Court has declined to exercise its discretion to condone the delay in the facts and -8- NC: 2023:KHC-D:9005-DB WA No.100412 of 2023 circumstances of the said judgment, which are clearly distinguishable from the facts of the instant case and consequently, no reliance can be placed upon the said judgment by the respondent since the same is inapplicable to the case on hand and the said contention cannot be accepted.
9. In the result, the following:
ORDER
i) Writ petition is allowed subject to the petitioner depositing a sum of Rs.10,000/-
(Rupees Ten Thousand only) to the Advocates Welfare Fund, Bengaluru, within a period of eight weeks from today.
ii) The impugned order at Annexure-A dated 02.03.2021 passed by the respondent No.1 is hereby quashed and the application for condonation of delay in preferring the appeal by the petitioner before respondent No.1 is hereby allowed and the delay in preferring the appeal stands condoned.
iii) The matter is remitted back to respondent No.1 for re-consideration afresh in accordance with law, without reference to the issue/question regarding condonation of delay and/or limitation in preferring the appeal which stands concluded in favour of the petitioner by virtue of this order.
iv) The respondent No.1 is directed to consider the appeal preferred by the petitioner-appellant without reference to the issue/question of limitation and dispose of the appeal on merits in accordance with law.
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NC: 2023:KHC-D:9005-DB WA No.100412 of 2023 It is made clear that this order is passed in the peculiar/special facts and circumstances obtaining in the instant case and shall not be treated as a precedent or having any precedential value for any purpose, whatsoever."
8. In this regard, a perusal of the impugned order passed by the learned Single Judge in the present appeal will indicate that exercise of powers by this Court under Article 226 of the Constitution of India and as held by this Court supra has not been considered by the learned Single Judge. Under these circumstances, in order to give one more opportunity to both the parties to put forth their rival contentions before the learned Single Judge, we deem it just and appropriate to set aside the impugned order and remit the matter back to the learned Single Judge for reconsideration afresh in accordance with law.
9. In the result, we pass the following:
ORDER
i) The appeal is hereby allowed.
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NC: 2023:KHC-D:9005-DB WA No.100412 of 2023
ii) The impugned order dated 13.06.2023 passed in W.P. No.103626/2023 is hereby set aside.
iii) The matter is remitted back to the learned Single Judge for reconsideration afresh in accordance with law.
iv) All rival contentions are kept open an no opinion is expressed on the same.
Sd/-
JUDGE Sd/-
JUDGE KMS List No.: 1 Sl No.: 48