Orissa High Court
M/S. Supertron Electronics Pvt vs State Of Odisha And Others ..... ... on 30 November, 2023
Bench: B.R. Sarangi, Murahari Sri Raman
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 17047 of 2023
M/s. Supertron Electronics Pvt. ..... Petitioner
Ltd. BBSR
Mr. Amit Patnaik, Advocate
Vs.
State of Odisha and others ..... Opposite parties
Mr. Sunil Mishra, SC for Revenue
CORAM:
ACTING CHIEF JUSTICE DR. B.R. SARANGI
MR. JUSTICE MURAHARI SRI RAMAN
ORDER
30.11.2023 Order No. This matter is taken up through hybrid mode.
05.
2. Heard Mr. Amit Patnaik, learned counsel for the petitioner and Mr. Sunil Mishra, learned Standing Counsel for Revenue.
3. The petitioner has filed this writ petition challenging the order dated 17.09.2022 passed by the Odisha Sales Tax Tribunal, Cuttack in S.A. No. 176 (VAT) of 2020 under Annexure-10 dismissing the petition for condonation of delay.
4. Mr. Patnaik, learned counsel for the petitioner contended that the order dated 27.12.2017 passed by the Joint Commissioner of Commercial Taxes (Appeal), Bhubaneswar Range, Bhubaneswar under Annexure-3 has not been received by the petitioner, but action has been taken against him pursuant to such order. He further contended that Section 78 of the Odisha Value Added Tax Act, 2004 clearly specifies that any dealer or, as the case may be, the Government if not satisfied with an order passed under sub-section (7) of section 77 may, within sixty days from the date of receipt of such order, prefer an appeal in the prescribed manner to the Tribunal.
Page 1 of 7Therefore, it gives a mandate that 60 days time is to be calculated from the date of receipt of the order. According to him, nothing has been placed before the Tribunal showing that the order has been received by the petitioner and he has not filed the appeal within 60 days from the date of knowledge of such appellate order. In absence of any material before the Tribunal in respect of the receipt of the order by the petitioner, the impugned order passed by the Tribunal cannot be sustained in the eye of law. In support of his contention, he relied on the decision of this Court in the case of Sinclair Murray and Company (PVT) Ltd. v. State of Orissa, [1970] 26 STC 451 (Orissa), and the decisions of the apex Court in the cases of Raja Harish Chandra Raj Singh v. Deputy Land Acquisition Officer and another, (1962) 1 SCR 676 : AIR 1961 SC 1500 and Sabarmati Gas Limited v. Shah Alloys Limited, (2023) 3 SCC 229.
5. Mr. Sunil Mishra, learned Standing Counsel appearing for the Revenue contended that in compliance of the order of this Court dated 12.10.2023 and 09.11.2023, instruction has been received from Joint Commissioner of CT & GST (Appeal), CT & GST Territorial Range, Bhubaneswar, wherein it has been specifically stated that the First Appeal order dated 27.12.2017 bearing No. AA/106221622000009/OVAT/BH-II in case of the dealer for the period from 01.04.2012 to 31.03.2014 was sent through speed post bearing consignment No.-EO889167540IN on 25.01.2018 and the same has not been returned back as per the record. It was also indicated that the Senior Superintendent of Post Offices, Bhubaneswar Division, Bhubaneswar was also requested to provide the service details of the above consignment vide office letter dated 16.10.2023 and subsequent reminder dated 07.11.2023 and in Page 2 of 7 response to the same, it is replied that the above consignment pertains to the period 2018 and the relevant records of the aforesaid article is not available as the information relates to beyond the period prescribed for preservation of records.
6. Having heard learned counsel for the parties and after going through the records, it appears that the Odisha Sales Tax Tribunal recorded that it becomes quite evident that there is delay of 2 years 299 days in filing of the appeal. Whatever may the fact, it cannot be disputed that the onus to show that the "sufficient cause" exists for condonation of delay lies upon the applicant-petitioner. It is obligatory upon the appellant to show "sufficient cause" due to which he was prevented from filing of this appeal in time. To explain this delay, the applicant has only stated that it was due to Covid 19 and it could know about passing of the first appellate order at a belated stage. Therefore, the tribunal dismissed the Second Appeal on the ground of limitation. But fact remains the factum of communication of the order of the 1st Appellate Authority is evident from the consignment, which has been enclosed to communication made to the Standing Counsel on 29.11.2023, but nothing has been placed on record whether the said consignment has been duly served on the petitioner or not. As such, there is no evidence produced by the Revenue to establish the fact that the order of the 1st Appellate Authority has been served on the petitioner and there is due communication of the said order to the petitioner.
7. In Sinchalir Murray (supra), a Division Bench of this Court had taken into consideration such fact and came to a finding at paragraph-5 that the effective order would be that passed by the Sales Tax Officer on 2nd August, 1959, when he made reassessment.
Page 3 of 7Or, rather, for the purpose of limitation, the effective date would be 6th August, 1959, when the above order of reassessment was communicated to him. The petitioner availed of the earliest opportunity in filing his refund application on 13th August, 1959 and as such the application is not, therefore, barred by time.
8. Therefore, if this principle is taken into consideration, so far as communication made by the authority is concerned, the same is evident from the consignment dated 25.01.2018, but whether the same has in fact been served on the petitioner or not, nothing has been placed on record. Mere consigning the document without serving the same on the authority concerned, it cannot be said that the order has been served on him. Apart from the same, non-service of the document on the petitioner is well justified and more confirmed because the postal authorities have declined to give any information with regard to the service on the basis of the tracking report as the consignment is pertaining to the period 2018 and the relevant records of the aforesaid article is not available as these pertain to outside the period prescribed for preservation of records. In absence of any material before this Court that service has been made to the petitioner, the inevitable conclusion is that the same has not been served on the petitioner.
9. In Raja Harish Chandra Raj Singh (supra), the apex Court at paragraph-10 of the judgment observed as follows:-
"10. It may, however, be pertinent to point out that the Bombay High Court has taken a somewhat different view in dealing with the effect of the provision as to limitation prescribed by s. 33A(2) of the Indian Income-tax Act. This provision prescribes limitation for an application by an assessee for the revision of the specified class of orders, and it says that such an application should be made within one year from the date of the order. It is Page 4 of 7 significant that while providing for a similar period of limitation s. 33(1) specifically lays down that the limitation of sixty days therein prescribed is to be calculated from the date on which the order in question is communicated to the (1) (1914) 22 Ind. C. 652. (2) A.I.R. 1954 Bom. 419, (3) A.I.R. (1958) Kerala 272, assessee. In other words, in prescribing limitation s. 33(1) expressly provides for the commencement of the period from the date of the communication of the order, whereas s. 33A(2) does not refer to any such communication; and naturally the argument was that communication was irrelevant under s.33A(2) and limitation would commence as from 'the making of the order without reference to its communication. This argument was rejected by the Bombay High Court and it was hold that it would be a reasonable interpretation to hold that the making of the order implies notice of the said order, either actual or constructive, to the party affected by it. It would not be easy to reconcile this decision and particularly the reasons given in its support with the decision of the same High Court in the case of Jehangir Bomanji. The relevant clause under s. 33A(2) of the Indian Income-tax Act has also been similarly construed by the Madras High Court in O.A.O.A.M. Muthia Chettiar v. The Commissioner of Income-tax, Madras. "If a person is given a right to resort to a remedy to get rid of an adverse order within a prescribed time", observed Rajamannar, C.J., "limitation should not be computed from a date earlier than that on which the party aggrieved actually knew of the order or had an opportunity of knowing the order, and therefore must be presumed to have the knowledge of the order". In other words the Madras High Court has taken the view that the omission to use the words "from the date of communication" in s.33A(2) does not mean that limitation can start to run against a party even before the party either knew or should have known about the said order. In our opinion this conclusion is obviously right."
10. Similarly in Sabarmati Gas Limited (supra), the apex Court at paragraph-40 of the judgment observed as follows:
40. As relates Section 5 of the Limitation Act showing Page 5 of 7 'sufficient cause' is the only criterion for condoning delay. 'Sufficient Cause' is the cause for which a party could not be blamed. We have already taken note of the legal bar for initiation of proceedings against an industrial company by virtue of Section 22 (1), SICA and obviously, when a party was thus legally disabled from resorting to legal proceeding for recovering the outstanding dues without the permission of BIFR and even on application permission therefore was not given the period of suspension of legal proceedings is excludable in computing the period of limitation for the enforcement of such right in terms of Section 22(5), SICA.
In the absence of provisions for exclusion of such period in respect of an application under Section 9, IBC, despite the combined reading of Section 238A, IBC and the provisions under the Limitation Act what is legally available to such a party is to assign the same as a sufficient cause for condoning the delay under Section 5 of the Limitation Act. In such eventuality, in accordance with the factual position obtained in any particular case viz., the period of delay and the period covered by suspension of right under Section 22 (1), SICA etc., the question of condonation of delay has to be considered lest it will result in injustice as the party was statutorily prevented from initiating action against the industrial company concerned. The first question formulated hereinbefore is accordingly answered.
11. In view of the law laid down by the apex Court as well as this Court as mentioned above and considering the same in the light of Section 5 of the Limitation Act, this Court can safely come to the conclusion that even though the order passed by the 1st Appellate Authority has been consigned as mentioned above, in absence of any material with regard to actual service of the same on the petitioner, the conclusion would be that the order has not been communicated to the petitioner. Therefore, this Court is of the firm opinion observation that when the 1st Appellate Authority passed the Page 6 of 7 order and communicated the same to the assessee, it is the responsibility of the said authority to see that the same has been served on the assessee and evidence of service was required to be kept in record. But a different view has been taken by the Tribunal.
12. In that view of the matter, the order dated 17.09.2022 passed by the Odisha Sales Tax Tribunal, Cuttack in S.A. No. 176 (VAT) of 2020 under Annexure-10 cannot be sustained in the eye of law and the same is liable to be quashed and is hereby quashed. Accordingly, the matter is remitted to the Odisha Sales Tax Tribunal, Cuttack to re-hear the matter afresh by giving opportunity of hearing to the petitioner and dispose of the same in accordance with law.
13. With the above observation and direction, the writ petition stands disposed of.
(DR. B.R. SARANGI)
ACTING CHIEF JUSTICE
Arun (M.S. RAMAN)
JUDGE
Signature Not Verified
Digitally Signed
Signed by: ARUN KUMAR MISHRA
Designation: ADR-cum-Addl. Principal Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Dec-2023 16:23:11 Page 7 of 7