1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 31.03.2011 CORAM THE HONOURABLE MR.JUSTICE B.RAJENDRAN W.P.(MD).No.3801 of 2011 and M.P.(MD).No.1 of 2011 N.Shanmugasundaram ... Petitioner Vs 1)The Deputy Commissioner (Appellate Authority), Commercial Taxes, Virudhunagar. 2)The Commercial Tax Officer, Ramanathapuram. ... Respondents Prayer:- Writ petition filed under Article 226 of the Constitution of India to issue a Writ of Mandamus to direct the second respondent to accept 25% of the disputed tax for the compliance of the Section 51 of the Tamil Nadu VAT Act,2006 and further direct the first respondent to number and dispose an appeal as against the revised assessment order dated 31.08.2010 in TIN 33595441661 passed under Section 27 of the Value Added Tax Act,2006 passed by the second respondent herein/Commercial Tax Officer, Ramanathapuram. For Petitioner : Mr.R.R.Thamothar Raj For R.1 & 2 : Mr.S.C.Herold Singh Addl. Govt.Pleader O R D E R This Writ Petition has been filed by the petitioner on the ground that his appeal as against the revised assessment order before the first respondent appellate authority was returned on the ground that the petitioner has not complied with Section 51 of the Tamil Nadu VAT Act, 2006, (for short ' the Act') by depositing 25% of the disputed tax. Even after returning for compliance, he has not done so. Though he offered a personal security bond, which was not accepted by the appellate authority. His only grievance is that he is now prepared to pay 25% of the disputed tax as contemplated under Section 51 of the Act. Still, neither the respondents accept the amount nor entertain the appeal preferred by the petitioner. Aggrieved against the same, he has come forward with the present Writ Petition directing the appellate authority to receive the amount and to dispose of the appeal. https://hcservices.ecourts.gov.in/hcservices/ 2 2. In this connection, the learned counsel for the petitioner would rely upon a judgment in Messrs Lalta Prasad Khinni Lal Vs. Assistant Commissioner (Judl) Sales Tax, Kanpur, reported in 1972 (4) SCC 505 and contend that under the general sales tax in an identical provision for preferring the appeal, even though 25% of the amount is not deposited, if the appeal is presented in time, the same is maintainable. In that case, the Supreme Court has held that the appeal has to be considered in the light of late deposit made by the party subject to the limitation and the same will be dealt with under Section 5 of the Limitation Act. Therefore, he would only contend that the appellate authority should consider his request for entertaining the appeal. 3. Mr.Herold Singh took notice for the respondents and would contend that the appeal itself is not proper because when the appeal is not presented with the disputed tax under Section 51 of the Act, the appeal cannot be entertained at all. He would further contend that even as per the averment made by the petitioner in the Writ Petition, he is now willing to deposit the amount only after filing of the Writ Petition. Since he has not deposited the amount in question, definitely, the appeal has to be looked into under the ground of limitation and the authorities would always be entitled to investigate the case on that ground. Heard both the parties. By consent, the Writ Petition itself is taken up for final final disposal at the stage of admission. 4. The short point that arises for consideration in this Writ Petition is that petitioner, who challenged the revised assessment tax before the appellate authority while presenting the appeal has not complied with under Section 51 of the Act which specifically says that appeal should accompany with document for payment of 25% of the disputed tax alone. Admittedly, this has not been paid by the petitioner though he has offered personal bond along with the application which is filed in time, it was not accepted and appeal itself was returned on that ground stating that he has not complied with the Act. Now, he only says before this Court that he is prepared to comply with the Section 51 of the Act and he will pay 25% of the amount and re-present the appeal along with the payment challen. But the question that arises is that when the appeal though originally presented in time was valid or not because of non-payment of the disputed amount. 5. In this connection, we are guided by the decision of the Supreme Court in Messrs Lalta Prasad Khinni Lal Vs. Assistant Commissioner (Judl) Sales Tax, Kanpur and another, reported in 1972 (4) SCC 505. In a similar case which arose in respect of sales sax when the appeal was filed within the time and the disputed amount was not deposited in time and subsequently, when it was deposited, the High Court as well as the lower appellate authority dismissed that appeal holding that it could not be entertained as the appeal is not in accordance with the Rules. The Supreme Court had stated in paragraph:6 of the said judgment, which goes thus:- “6.The Allahabad High Court appears to have been greatly influenced by the decision of this Court in Lakshmiratan Engineering Works Ltd. Vs. Assistant Commissioner (J) Sales Tax, Kanpur and by the meaning of the word “entertain” as explained there. We have found considerable difficulty in discovering how https://hcservices.ecourts.gov.in/hcservices/ 3 that decision could afford any assistance to the respondents in the present case. Indeed according to that decision the words “no appeal shall be entertained” in the proviso to Sec.9 do not denote the filing of the memorandum of appeal but refer to the point of time when the appeal is being considered. Therefore, though the memorandum of appeal filed within time is not accompanied by the treasury challan showing payment of tax if before the appeal is being considered satisfactory proof of payment of tax is given then the proviso to Sec.9 is satisfied. In the present case, when the assessee produced the necessary documents which showed that the deposit of the full amount had been made by May 27, 1966 the appeal became entertainable. It only suffered from the defect that it was barred by time on that date. The assessee could, therefore, apply under Section 9(6) for extending the period of limitation in accordance with the Section 5 of the Limitation Act. It is entirely a different matter whether on the facts of the present case the appellate authority would have condoned the delay or not but to say that the appellate authority had application to extend the time simply because the amount of admitted tax had been deposited beyond the period of 30 days would be wholly erroneous and would not represent a true and correct view of the provisions of Sec.9. It may be pointed out that the case of Lakhmiratan Engineering Works on which the High Court largely relied did not involve the question of the extension of the period of limitation under Section 9(6). Indeed in our judgment the word “entertain” in Sec.9(1) has hardly any material bearing on the point under consideration. 7.As the appellate authority disposed of the appeal on the short ground that it was barred by time and that it had no jurisdiction to extend the period of limitation this matter will have to go back for reconsideration and redecision of that authority in the result the appeal is allowed and the judgment of the High Court is set aside. The case is remitted to the High Court for making appropriate directions for reconsideration and rehearing of the appeal by the appellate authority under the Act. The assessee will be entitled to costs in this court. ” By saying that the matter has to be considered afresh after giving an opportunity to the petitioner as the appeal being filed beyond the time because even though the appeal is presented in time only after the payment of 25% the appeal and therefore, the delay from the original date and the delay till the date of payment has to be sufficiently explained by the petitioner so as to seek the jurisdiction of the appellate authority to condone the delay under Section 5 of the Limitation Act. 6. Suffice to only point out that the petitioner is permitted to re- present the appeal after payment of 25% of tax as per Section 51 of the Act along with the application to condone the delay for filing the appeal and on such application and the appeal being presented, it is purely on the appellate authority to decide whether to entertain the appeal and condone the delay under Section 5 of the Limitation Act. For the limited purpose, this Writ Petition is disposed of directing the authorities to consider https://hcservices.ecourts.gov.in/hcservices/ 4 the appeal and pass appropriate orders on merits in accordance with law, if it is represented with the challan for payment of 25% tax within one week from the date of receipt of a copy of this order. Consequently, the connected miscellaneous petition is closed. No costs. SD/- Assistant Registrar (P & A) /True copy/ Sub Assistant Registrar(C.S) To 1)The Deputy Commissioner(Appellate Authority), Commercial Taxes, Virudhunagar. 2)The Commercial Tax Officer, Ramanathapuram. +1. CC to the Special Government Pleader, SR.NO.12305 ssm W.P.(MD).No.3801 of 2011 31.03.2011 TR : 20.04.2011 : 4p/4c https://hcservices.ecourts.gov.in/hcservices/