The State Of Kerala vs M/S.Havea Combines on 4 November, 2008

[Cites 17, Cited by 4]

Kerala High Court

The State Of Kerala vs M/S.Havea Combines on 4 November, 2008

These revision petitions are filed by the Revenue, being aggrieved by the common order passed by the Sales Tax Appellate Tribunal, Additional Bench, Kozhikode in T.A.Nos.78,79, 81 to 90/2001 dated 27th March, 2002. By the impugned order, the Tribunal has allowed assessees' appeal and has set aside the orders passed by the Assistant Commissioner(Assessment), Sales Tax Office, Special Circle II, Kozhikode, assessing them for the assessment years 1986-87 and 1987-88 both under Kerala General Sales Tax Act, 1963 (KGST Act, for short) and Central Sales Tax Act, 1956 (CST Act, for short) (M/s. Havea Combines). For the year 1987-88 and 1988-89 both under KGST Act and CST Act only Sri.Rauf has been assessed as the proprietor of concern S.T.Rev.Nos.209/08 etc. - 2 - M/s.Jaimond Traders.

2. These revision petitions are filed nearly after six and half years from the date of passing of the order. Therefore, an application under Section 5 of the Limitation Act is filed to condone the delay in filing these revision petitions.

3. The reasons stated in the affidavit filed in support of the application apart from others are, that the tax revision cases relates to assessment years 1986-87 and 1987-88; the Sales Tax Appellate Tribunal, Addl.Bench, Kozhikode vide their order dated 27.3.2002 has allowed 12 appeals filed by the assessee in T.A.Nos.78/2001 and connected cases; though the Tribunal passed the order on 27.3.2002, copy of the same was served on the Commercial Taxes Department only on 27.5.2002; after examining the order along with connected files the Law Officer, Department of Commercial Taxes, Kozhikode placed the files before the Deputy Commissioner (General), Department of Commercial Taxes, Thiruvananthapuram with a proposal to file Tax Revision Cases against the orders passed by Sales Tax Appellate Tribunal on 4.6.2003; the Deputy Commissioner (Int) as per his letter No.KE 10.5777/01 dated 28.6.2002 had also sent a proposal to the Deputy Commissioner (General), S.T.Rev.Nos.209/08 etc. - 3 - Thiruvananthapuram to file revision petition; the file along with the Tribunal's order was despatched to the Office of Advocate General vide letter No. D2.141/02 dated 24.7.2002 and the same was received in the office of the Advocate General on 27.5.2002; the file was submitted to the then Special Government Pleader (Taxes) for examining the scope for filing revision petition; on 10.6.2004 the Government Pleader opined that it is not fit cases for filing of revision petitions; the legal opinion of the Special Government Pleader (Taxes) was approved by the then Additional Advocate General on 2.7.2004; the legal opinion of the Special Government Pleader as approved by the Additional Advocate General was communicated to the office of Joint Commissioner of Law Department, Commercial Taxes, Ernakulam on 3.11.2004; the Joint Commissioner (Law), Department of Commercial Taxes by his letter No.D2-141/02 dated 5.11.2004 requested the then the Advocate General to reconsider the legal opinion; the Special Government Pleader (Taxes) by his letter dated 6.1.2005 reiterated his earlier opinion that there is no scope for filing Revision Petition; on 21.2.2005 the the Additional Advocate General approved the opinion of the Special Government Pleader (Taxes); the S.T.Rev.Nos.209/08 etc. - 4 - Secretary, Department of Taxes, Government of Kerala vide letter No.239/C1/05/TD dated 1.3.2005 requested the Advocate General to make necessary arrangements to file revision petitions before the High Court; the said letter was placed before the Special Government Pleader (Taxes) on 28.3.2005 by the Advocate General; several reminders were sent to Advocate General's Office and since there was no response, the Secretary(Taxes) and the Commissioner of Commercial Taxes by their letter dated 30.6.2005 and 1.7.2005 yet again made a request to the Advocate General to reconsider the opinion and file revision petitions, if possible; this request did not yield results.

4. In the affidavit, it is further stated that on 3.7.2007, the Commissioner of Commercial Taxes vide letter No.C5-72142/04/CT requested the Secretary to Government (Taxes) to issue appropriate instruction to the office of Advocate General for filing revision petitions. It is also stated that on 28.7.2007, the Secretary Taxes Department again requested the Advocate General to reconsider the matter. Thereafter, the files were placed on 5.9.2007 before the Special Government Pleader (Taxes) for reconsideration of legal opinion. After reconsideration of the matter and verification of the assessment records and other documents, the S.T.Rev.Nos.209/08 etc. - 5 - Special Government Pleader opined that there is scope for filing of revision petition. It is further stated that due to heavy work, the section took time till 20.6.2008 for preparing the paper book and immediately thereafter the petition was filed before the Court. Therefore, there is a delay of nearly 2127 days in filing the revision petition and the same was unintentional and for bona fide reasons and the same requires to be condoned.

5. When the matter was posted for consideration of application for condonation of delay, we had requested Sri.Jacob P.Alex, learned counsel to assist us after going through the entire records.

6. The learned counsel after scrutinising the records has brought to our notice that as per the notings in the original records, dated 11.7.2005, 16.7.2005 and 19.7.2005, the files were pending consideration before the Advocate General himself. It is also brought to our notice that by a letter dated 28.7.2007, the Additional Secretary to Department of Taxes addressed to Advocate General there is a reference to the letter of the Advocate General dated 14.11.2005. From this letter,it is revealed that the then advocate General had considered the request of Secretary to Government (Taxes) and had opined that after discussing the issues S.T.Rev.Nos.209/08 etc. - 6 - involved in the orders passed by the Tribunal, that, the revision petitions need not be filed, since the Department does not have any case on merits. It is also brought to our notice that the department has not explained the delay between 14.11.2005 and 28.7.2007 i.e. nearly for two years. By referring to original records, it is brought to our notice that, the then Advocate General had considered the suggestion of the Department to file revision and vide his letter bearing No.SS.41/05/AG dated 14.11.2005 had in fact communicated his advice not to file the revision petition. It is also brought to our notice that it is only on 28.7.2007 vide letter No.14737/C1/2007/TD, the Secretary, Taxes Department again requested the Advocate General to reconsider the matter based on the letter of Commissioner dated 3.7.2007. It is stated from the records and from the affidavit filed for condonation of delay in filing the revision petition, it could be gathered that between the period 14.11.2005, the date of opinion of Advocate General and 28.7.2007, the date of letter from Secretary (Taxes) to Advocate General, there was no material or materials showing the intention of the Department to file revision petitions. Alternatively, the learned counsel suggests that the Government seems to have agreed with the view of the learned Advocate General and for about S.T.Rev.Nos.209/08 etc. - 7 - 20 months no steps were taken to file revision petition. It is also stated that there are no materials on record showing that the department was diligently prosecuting the matter during this period.

7. We have heard Sri.Vinod Chandran, learned Government Advocate and Sri.Jacob P.Alex, amicus curiae. The learned Government Advocate submits that the Department was repeatedly requesting the office of the Advocate General to prefer revision petitions against the common order passed by the Appellate Tribunal and their request was repeatedly turned down by the learned Government Pleader (Taxes) and his opinion was not only endorsed by the learned Additional Advocate General and also the learned Advocate General and therefore, it cannot be said that the Department was not diligent in its efforts to get the revision petition filed before this Court. In aid of his submission, the learned counsel relies on the observations made by the Apex Court in the case of Joginder Singh Wasu vs. State of Punjab,(1994) 1 SCC 184. In the said decision, the court has stated that the relationship between the Advocate General and the State Government is essentially that of an advocate and a client in relation to his appearance in the court and arguing the case before the court on behalf of the State. The court has further S.T.Rev.Nos.209/08 etc. - 8 - stated that the office of an Advocate General is an exalted one. He is the Supreme Law Officer of the State. He is treated on par with the Minister. Having regard to his high position, when any statement or a concession is made by him, the courts have always accepted his statement and has acted on that.

8. Sri.Jacob P.Alex, would tell us, that, when it comes to provisions regulating period of limitation in fiscal statutes, it requires to be strictly construed. In aid of his submission, the learned counsel brings to our notice the observation made by Apex Court in the case of K.M.Sharma vs. I.T.Officer, AIR 2002 SC 1715. In the said decision, the court has stated that the "fiscal statutes more particularly on a provision such as the present one regulating the period of limitation, must receive strict construction. Law of Limitation is intended to give certainty and finality to legal proceedings and to avoid exposure to risk of litigation to litigant for indefinite period on future unforeseen events. The learned counsel also brings to our notice the observations made by Apex Court in the case of J.K.Cotton Spinning and Weaving Mills vs. Collector of Central Excise, (1988) 3 SCC 540, wherein the court has observed: "Hence that limitation period should not be stretched more than S.T.Rev.Nos.209/08 etc. - 9 - the elasticity supplied in the section itself".

9. Section 41 of the KGST Act provide for filing of revision petition both by the Government and also a person aggrieved by the orders passed by the Appellate Tribunal. Sub-section (1) envisages that such a revision petition requires to be filed within 90 days from the date of service of the copy of the order passed by the Tribunal. Proviso appended to the Section gives discretion to the court to condone the delay in filing the revision petition, if the court is satisfied that the revision petitioner had sufficient cause for not preferring the petition within the period envisaged under sub-section (1).

10. The common order passed by the Appellate Tribunal in the appeals filed by the assessee is dated 27.3.2002 and the same was received by the Commercial Taxes Department on 27.5.2002. In view of sub-section (1) of Section 41 of the KGST Act, the last date for filing the revision petition was 24.8.2002. A request was made by the officers of the Department with Special Government Pleader (Taxes) to offer his opinion whether Revision Petition could be filed questioning the correctness or otherwise of the order passed by the Tribunal. The law officer concerned after elaborately considering the order passed, has S.T.Rev.Nos.209/08 etc. - 10 - opined that the Tribunal being the last fact finding authority on the basis of materials available on record has entered a finding and that finding on fact is not a perverse finding and therefore no question of law arises in the case as to file a revision petition before this Court under Section 41 of the Act, since the revision petition is maintainable before this court, only if the Tribunal has erroneously decided the question of law or failed to decide the question of law and not under any other circumstances. The legal opinion was endorsed by the learned Additional Advocate General as required under the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978. When the Department has made yet another request to reconsider their earlier opinion, the law officer of the State has reiterated his earlier stance and that was again approved by the learned Additional Advocate General. While reiterating his earlier opinion, the learned Government Pleader (Taxes) has stated: "I had once again gone through the order passed by the tribunal, first appellate authority and the assessing authority. As per letter dated 5.11.2004, the Joint Commissioner has pointed out several factual aspects to saddle Sri.Rauf and his wife with the liability of proprietary concern. The contention of the Joint Commissioner will not stand in the S.T.Rev.Nos.209/08 etc. - 11 - eye of law. The assessing officer had jumped into conclusions basing on the transactions or incidents which have no direct or even remote connection with the assessee. In my opinion, if the reasoning in the assessment order is taken as a valid one, no person in the country is safe. An assessing officer can saddle with huge liability on any person with whom the officer has some grievance ....

... None of the aspects pointed out by the Joint Commissioner will amount to a question of law. A finding of fact entered by the final fact finding authority cannot be challenged in revision as if the revisional jurisdiction is an Appellate Jurisdiction empowering the Hon'ble Court to reappraise the entire evidence. I am of the firm opinion that there is no scope for filing any revision".

11. In spite of this second opinion, the department was not prepared to give quietus to the issue. They again requested the then Advocate General by their letter dated 1.3.2005 to offer his opinion about the feasibility of filing revision petitions against the orders passed by the tribunal. The learned Advocate General by his letter dated 14.11.2005 has informed the department in a lucid manner and has told them to drop their misadventure. We will only quote just one paragraph in his opinion, S.T.Rev.Nos.209/08 etc. - 12 - which gives a clear picture which prompted him to tell the department to reconsider their view on the subject issue.

"Let us go further. What is the remedy for the State now to get over this dilemmatic Order of the Tribunal. The remedy is nothing but Revision. Is Revision an automatic game in the field of law? The answer is only a big "NO", the Revision can be filed only when there is illegality, irregularity or impropriety. As the learned Special Government Pleader (Taxes) has opined twice and approved by none other than the Additional Advocate General, I find it difficult to discard it. Another redeeming feature which tickles me is the theory which is usually accepted under law is, that even assuming for argument sake that there is a solid reason to hold otherwise, yet if the reasoning given by the Tribunal or Court below is not otherwise unreasonable or is not stigmatized by any error apparent on the face of record, the usual cause (sic. course) will be to accept the view or theory proposed by the Tribunal."

12. The aforesaid paragraph which we have extracted would go to show that the request of the Government was considered by the learned Advocate General himself and he had advised the State Government that it is not worthwhile to file the revision petitions. From S.T.Rev.Nos.209/08 etc. - 13 - the records, it looks to us, that, the State Government had accepted the advise of the learned Advocate General.

13 In between 14.11.2005 and 28.7.2007, nothing seems to have happened. It is only on 28.7.2007, the department corresponds with the learned Advocate General with a request to file the revision petition. In turn records are placed before the Special Government Pleader (Taxes) and nearly after seven months, the revision petitions are filed with an application for condonation of delay of nearly 2127 days.

14. In so far as delay of nearly 20 months between 14.11.2005 and 28.7.2007, there is no explanation forthcoming in the affidavit filed along with the application. But at the time of hearing, the learned Government Advocate, Sri.Vinod Chandran, states that the elections for the Legislative Assembly had been declared and therefore, the department could not persuade the learned Advocate General to reconsider his opinion, and in so far as the delay between 28.7.2007 and till the date of filing the revision petitions ie., 20.6.2008, the only explanation is, that, due to heavy work in the office of the Advocate General, the paper books could not be prepared and due to pressure of work, revision petition could not be prepared.

S.T.Rev.Nos.209/08 etc. - 14 -

15. Now the question is, whether the delay in filing the revision petitions is satisfactorily explained by the Department so as to accept their explanation and condone the delay in filing the revision petitions.

16. In the present case, three law officers of the State Government had opined that since the orders passed by the Appellate Tribunal is purely based on appreciation of facts and since the findings of the Tribunal is not a perverse finding, there is no scope to file the revision petitions against the orders passed by the Appellate Tribunal. The learned Advocate General in his detailed opinion had advised the State Government that, the orders passed by the tribunal requires to be accepted by the State Government, since the findings of the tribunal is based on facts alone.

17. At this stage, it may be necessary, how far the value of the Advocate General binds the State Government. Art 165 of Indian Constitution was adopted from section 55 of the Government of India Act, 1935 that introduces Office of Advocate General in the Province. Advocate General for a State shall have the same position in the State as that of the Attorney General in relation to the Union. The Joint S.T.Rev.Nos.209/08 etc. - 15 - Parliamentary Committee report that envisages the Office of Advocate General opined:

"...We think, in particular, that the existence of such an office would prove a valuable aid to a Ministry in deciding the difficult questions which are not infrequently raised by those prosecutions which require the authority of Government for their intention, though we recognise that the responsibility for decisions in these matters must of necessity rest in the last resort in the Government itself. (JPC Report, Para 400-401)"

18. It is also necessary to note that Office of Attorney General and/or Advocate General is of English origin. United States of America also adopted this office for advising the State. In Corpus Juris Secundum, it is stated that:

"Judicial effect: It is broadly held that an attorney general's opinion is entitled to substantial weight and respectful consideration, but it has no controlling authority upon the State of the law discussed in it and standing alone is not to be regarded as legal precedent or authority of such character as judicial decisions. So an attorney general does not supplant the courts in advising state officers as to the constitutionality of statutes, but given his opinions for such officers' guidance until S.T.Rev.Nos.209/08 etc. - 16 - questions concerning are decided by the courts. An attorney general's opinion is not a 'determination' reviewable by a proceeding against a governmental body or officer."

19. In Halsbury's Laws of England, it is stated that:

"In the eyes of the court of Attorney General's opinion is entitled to no more authority than that of any other member of Bar....Admissions by the Attorney General bind the Crown as a matter of fact, but not as matters of law".

20. The Supreme Court in Periyar and Pareekanni Rubber Ltd. vs. State of Kerala, (1991) 4 SCC 195, ruled that 'concession made by government pleader cannot bind the Government unless it is specifically given in writing. But the same yardstick cannot be applied when Advocate General has made a statement across the bar'.

21. Thus in law and in practice, it could be concluded that the opinion of Advocate General, though to be given substantial weight and respectful consideration is not binding on the Government as statute or verdicts of Courts.

22. The opinion/advise so given by the Advocate General S.T.Rev.Nos.209/08 etc. - 17 - are not binding on the succeeding Advocate General. In Corpus Juris Secundum, it is stated:

"The Attorney General lacks such authority as will enable him to bind a succeeding attorney general not to bring an action or not to take an appeal, where the latter believes it be for the interest of the State to do so".

23. The Governor under Article 165(2) has made Rules Regulating the Conditions of Service, Duties, Remuneration, etc. of the Advocate General and Additional Advocate General, Kerala, (Pub. by Notification No.LD(A) 1-3006/56/law dt.01.11.1956). Relevant Rules, in the context of the above case, are:

2(ii). to advise the Government whenever required and the Board of Revenue or the Collectors in respect of appeals to the High Courts in cases where the Board of Revenue or the Collector has been authorised to sanctions the filing of such appeals.

Note:- Subject to the above, Heads of Department who require the advise of the Advocate General should address the Government in the Secretariat Department concerned and the Government will decide whether the advice of the Advocate General should be sought or not. 2(xi). to give advice to the Law Officers attached to the High Court in all difficult cases handled by them.... and also to S.T.Rev.Nos.209/08 etc. - 18 - supervise and control their work.

2(xiv). in particular, in the said proceedings whenever a decision adverse to the Government has been rendered, to report to Government immediately and advise Government about the further action to be taken, to apply on the very date of the decision for a copy thereof, to obtain the same expeditiously and to forward the copy to Government with this further advice;

2(xv). to report to Government about the advisability of pursuing the matter further by way of appeal or otherwise in such cases were decisions have been rendered against Government and in such other cases where he considers it necessary to do so.

24. Constitution of India confers certain Constitutional/Statutory functions on the Advocate General and with regard to those function, the final decision making authority is the Advocate General himself. Those functions are:-

Constitution of India (Article 177); Code of Civil Procedure (Sections 91 and 92); Code of Criminal Procedure (Section

302), Advocates Act (Section 23) etc. are to be carried out by the Advocate General himself and is not dependent on the decision of the Government.

S.T.Rev.Nos.209/08 etc. - 19 -

25. In so far as initiation of litigation in High Court is concerned, the role of Advocate General as per the relevant Rules is only to 'advice' the Government and the final authority to take a decision on the said advice is the Government itself. Government is free to take decisions regarding the initiation/filing of cases as it deems fit subject to the relevant laws. But at the same time, the advice/opinion furnished by the learned Advocate General should not be easily brushed aside by the executive except in exceptional cases and that too for valid reasons.

26. Nearly after twenty months, the department starts once again corresponding with the learned Advocate General to file revision petitions as was done by them earlier. Even though Advocate General himself did not appears to have personally perused the file or formed an opinion (according to the original records), nonetheless, authorised the Special Government Pleader (Taxes) to take an appropriate decision. Thus, the earlier opinion of the Advocate General on 14.11.2005 could be treated as reconsidered by his successor, though he does not say it in so many words as it had been done by his predecessor in office. The notings made by him on the letter addressed to him by the Secretary, Department of Taxes would only show that he has accepted the request of S.T.Rev.Nos.209/08 etc. - 20 - the Department. We are not expected to comment on this aspect of the matter, since he is a Constitutional functionary.

27. It is true that considerable delay of procedural red tape is in the process of Government making decision is a common feature. Therefore, certain amount of latitude is not impermissible. [See State of Haryana vs. Chandra Mani, 1996 (3) SCC 132; Spl. Tahsildar vs. K.V.Ayisumma, 1996 (10) SCC 634; and State of Nagaland vs. Lipok A.O, (2005) 2 SCC 752]. It is also true that, if there is conflict of legal advice between Government Pleaders and the same is liable to be considered as one of the good reasons for the delay in filing a correction petition before the superior forum. Further, it is also true that the mistaken advice given by the legal practitioner may, in the circumstances of a particular case, give rise to sufficient cause for condoning the delay, though there is certainly no general doctrine which saves the parties from the results of wrong advice.

28. Section 41 of the KGST Act incorporates a statutory period of ninety days within which revision petition requires to be filed by a person aggrieved. It is well settled rule of law that such an application should not be filed after unreasonable delay. The court is expected to S.T.Rev.Nos.209/08 etc. - 21 - look at the explanation for the delay and judge whether the explanation is satisfactory and the court must also be satisfied that there was diligence on the part of the petitioner and the petitioner was not guilty of negligence whatsoever. In the instant case, we will accept the explanation offered by the department till 14.11.2005, i.e. the day on which the learned Advocate General opined that it may not be necessary to file any revision petitions against the order passed by the Sales Tax Appellate Tribunal, since the findings of the Tribunal is merely based on facts and as such the Tribunal has not decided erroneously any question of law nor it has failed to decide the question of law. After receiving this opinion, the department did not pursue the matter further till 28.7.2007. In the affidavit filed, as we have already noticed, there is no explanation, but at the time of hearing the application for condonation of delay, the learned Government Advocate informs us that the department did not pursue the matter with the Advocate General's office, only because the elections to the legislative assembly had been announced by the Election Commission. We do not understand how this event comes in the way of the department in continuing their efforts to persuade the Government Advocate (Taxes) or the learned Advocate General to reconsider their earlier opinion and file S.T.Rev.Nos.209/08 etc. - 22 - revision petitions as requested by them earlier. Even after declaration of assembly elections, the learned Advocate General who had given his opinion continue to hold his office till 11.6.2006 and the new incumbent took over on 12.6.2006. Therefore, Advocate General's Office continued to function, though elections for constitution of legislative assembly was during the month of April, 2006. There is no explanation, much less proper explanation, for this delay of nearly 20 months.

29. In so far as delay between 28.7.2007, that is, the date on which the learned Advocate General has authorised the Government Advocate (Taxes) to file the revision petitions as requested by the department, till the date of filing of the revision petition, i.e. 20.6.2008, the delay is explained by stating that due to the pressure of the work in the office of the Advocate General the revision petitions could not be filed. In this process, there is delay of nearly eleven months. The explanation offered in this regard is neither reasonable nor acceptable explanation for the delay sought to be condoned. Sufficient cause for delay cannot be found merely by stating that the delay was caused by administrative reasons or by using analogous expressions. Administrative reasons for delay does not ipso facto constitute sufficient cause. The Apex Court has S.T.Rev.Nos.209/08 etc. - 23 - recently held in the case of N.Balakrishnan vs. M.Krishna Moorthy, (1998) 7 SCC 123 and in State of Nagaland vs. Lipok.A.O., (2005) 3 SCC 752, that, length of delay is no matter, acceptability of the explanation is the only criterion. The facts disclosed in the affidavit filed along with the application does not inspire confidence and therefore application filed requires to be rejected.

30. Apart from this, it is not the case of the department that the learned Government Advocate, Additional Advocate General and the learned Advocate General were working against the interest of the State Government. If it were to be so, we could have definitely said that it is a fit case where the delay in filing the petitions requires to be allowed. They all had good intentions but the department was not prepared to accept their advice.

31. Section 41 of the Act gives discretion to the court to condone the delay in filing the revision petition, if sufficient reasons are forthcoming in the application. If the sufficient cause is not shown, the court has no choice but to reject the application. In the instant case, the applicants have not assigned any reasons much less a reasonable cause to condone the delay of nearly 20 months between 14.11.2005 and S.T.Rev.Nos.209/08 etc. - 24 - 26.7.2007, till the date of filing of revision petitions. This unexplained delay is fatal to the proceedings. If this inordinate delay is condoned, it would affect and cause prejudice to the right of the other side, since that is also one of the relevant factors that requires to be kept in view, while considering the application for condonation of delay.

32. In view of the above discussion, we cannot accept the prayer made in the application to condone the delay of nearly 2127 days. Accordingly, application requires to be rejected and it is rejected and consequently all the revision petitions are also rejected. In the facts and circumstances of the case, parties are directed to bear their own costs.

Ordered accordingly.

Sd/-

H.L.DATTU, CHIEF JUSTICE.

Sd/-

A.K. BASHEER, JUDGE.

DK.

(True copy)

Unlock Advanced Research with PRISMAI

Kerala High Court