Andhra Pradesh High Court - Amravati
M/S. Bhagyalakshmi Modem Rice Mill, vs The Appellate Deputy Commissioner Ct, on 1 December, 2020
Author: K.Suresh Reddy
Bench: K.Suresh Reddy
HON'BLE SRI JUSTICE A.V.SESHA SAI
&
HON'BLE SRI JUSTICE K.SURESH REDDY
W.P.NO.22612 OF 2020
ORDER:(Per AVSS,J) Heard Sri G.Narendra Chetty, learned counsel for the petitioner and Sri S.A.V.Sai Kumar, learned Assistant Government Pleader for Commercial Taxes, for the respondents.
2. In the present writ petition, challenge is to the order, dated 16-03-2020 passed by the Appellate Deputy Commissioner(CT), Tirupathi-1st respondent herein. By way of the said order, the 1st respondent-Appellate Deputy Commissioner(CT), Tirupathi herein rejected the Appeal filed by the petitioner herein vide S.No.191/2018-
19.
3. The 2nd respondent-assessing authority passed an order of assessment on 19-11-2018 and the same was received by the petitioner on 20-11-2018. Thereafter, on 17-01-2019 the petitioner filed a statutory appeal before the 1st respondent herein under Section 31 of the Andhra Pradesh Value Added Tax Act, 2005 (for short "the Act").
4. By way of the order, under challenge, the 1st respondent- Appellate Deputy Commissioner(CT), Tirupathi, as mentioned supra, rejected the said appeal on the ground that the petitioner herein did not file the delay condonation petition and on the ground that the medical certificate produced by the petitioner herein would not fully cover the periods within which the appeal should be filed. Hence, the present writ petition.
5. It is contended by Sri G.Narendra Chetty, learned counsel for the petitioner that the order passed by the 1st respondent-Appellate 2 AVSS,J & KSR,J W.P.22612_2020 Deputy Commissioner(CT), Tirupathi, which is impugned in the present writ petition, is highly erroneous, contrary to law and opposed to the very spirit and object to the provisions of Section 31 of the Act and in an elaboration, it is further contended that though the petitioner herein submitted the medical certificate and also filed an application for condonation of delay, the 1st respondent herein erroneously dismissed the appeal.
6. On the other hand, it is vehemently contended by the learned Assistant Government Pleader for Commercial Taxes that there is no error nor there exists any infirmity in the impugned order passed by the 1st respondent and in the absence of the same, the invocation of jurisdiction of this Court under Article 226 of the Constitution of India is impermissible. It is also the submission of the learned Assistant Government Pleader that having regard to the provisions of Section 33 of the Act, the present writ petition is liable to be dismissed on the ground of availability of an alternative remedy. It is the further submission of the learned Assistant Government Pleader that since the petitioner herein failed to produce any documentary evidence as to the filing of delay condonation petition by the petitioner, no interference of this court is warranted.
7. There is absolutely no controversy with regard to the reality that the petitioner herein received the order of assessment on 20-11-2018 passed by the 2nd respondent on 19-11-2018. According to Section 31 of the Act, the last date for availing the said remedy was 20-12-2018, but admittedly the instant appeal came to be preferred on 17-01- 2019, as such, delay of 28 days occurred in filing the said appeal. As per Sub-section (1) of Section.31 of the Act, the appeal needs to be filed within 30 days from the date of service of the order on the assessee. The proviso to Sub-section(1) of Section 31 of the Act 3 AVSS,J & KSR,J W.P.22612_2020 empowers the appellate authority to entertain the appeal within a further period of 30 days from the initial period of 30 days.
8. The information available before this Court discloses that vide check memo, dated 05-02-2019, the Appellate Deputy Commissioner(CT), Tirupathi indicated about the information as to the date of receipt of the order. In response to the said check memo on 14-02-2019, the petitioner herein submitted a representation informing the date of receipt of the assessment order as 20-11-2018 and also enclosed a medical certificate in support of the delay. Vide proceedings S.No.191/2018-19, dated 11-11-2019, a final check memo came to be served on the petitioner raising the following two objections:-
1. There is a delay of 28 days in filing the appeal.
2. Medical Certificate filed, delay condonation petition not filed.
Subsequently on 10-01-2020, according to the petitioner, the petitioner submitted a representation/application stating that the appeal could not be filed within the statutory period of 30 days due to the ill-health, which led to filing of the appeal with a delay of 28 days. The petitioner also stated that he produced the medical certificate for condontion of delay. According to the learned Assistant Government Pleader, there is absolutely no evidence on record to show that such a representation/application reached the appellate authority. But, the fact remains that along with the present writ petition, the petitioner herein also filed a receipt issued by the DTDC Express Limited, a Courier service, on 13-01-2020.
9. Since the delay in filing the appeal is not exorbitant and on the other hand, it is short and as the petitioner herein enclosed the medical certificate for the period covering 15-12-2018 to 31-12-2018, in the considered opinion of this court, the appellate authority should 4 AVSS,J & KSR,J W.P.22612_2020 not have been hyper-technical in considering the delay that too delay of 28 days. It is a settled and well established principle of law that while considering the delay application, the Courts are required to be liberal, however having regard to the facts and circumstances of the case. Therefore, the appellate authority should have considered the explanation offered by the petitioner and should have condoned the delay in filing the appeal and should have considered positively having regard to the amount involved.
10. Coming to the contention advanced by the learned Assistant Government Pleader with regard to the maintainability of the writ petition, having regard to the provisions of Section 33 of the Act, it is required to be noted that in the considered opinion of this court the non-consideration of the application, dated 10-01-2020, submitted by the petitioner wherein the petitioner explained the reason for delay would tantamount to violation of the principles of natural justice. It is a settled and well established principle of law that when there is a violation of principle of natural justice or when the order impugned suffers from inherent lack of jurisdiction, the alternative remedy is not a bar for entertaining the writ petition. Accordingly, the contention contra advanced by the learned Assistant Government Pleader is liable be rejected and is accordingly rejected.
For the afore said reasons, the writ petition is allowed, at the stage of admission, setting aside the order passed by the 1st respondent-Appellate Deputy Commissioner(CT), Tirupathi, vide proceedings in S.No.191/2018-19, bearing ADC Order No.5144/17.03.2020, dated 16-03-2020, only to the extent of the petitioner herein and consequently delay of 28 days in filing the appeal stands condoned and the 1st respondent- Appellate Deputy Commissioner(CT), Tirupathi shall hear the appeal filed by the 5 AVSS,J & KSR,J W.P.22612_2020 petitioner herein on merits and pass appropriate orders in accordance with law. No costs.
Miscellaneous Petitions pending, if any, shall stand closed in consequence.
_______________ A.V.SESHA SAI,J ___________________ K.SURESH REDDY,J 1st DECEMBER,2020 TSNR