*THE HON’BLE SRI JUSTICE V.V.S.RAO AND * THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN + WRIT PETITION Nos.13470 OF 2009; 13735, 16179, 18501 AND 27885 OF 2010 WRIT PETITION No.13470 OF 2009: % Dated 11-02-2011 # M/s. Ankamma Trading Company …. Petitioner Vs. $ The Appellate Deputy Commissioner (CT), Guntur …. Respondent ! Counsel for the Petitioner: Sri M.V.J.K. Kumar ^ Counsel for the Respondent: Sri K.V. Krishna Koundinya <GIST: > HEAD NOTE: 1. (2006) 43 APSTJ 72 2. AIR 1992 SC 2279 3. AIR 2001 SC 4010 4. AIR 1964 SC 1099 5. (1974) 2 SCC 133 6. 2009(6) ALD 315 7. (1975) 4 SCC 22 8. AIR 1995 SC 2272 9. (2005) 142 STC 52 10. (1955) 2 SCR 603 11. (1964) 7 SCR 539 12. (1976) 3 SCC 800 13. (1974) 1 SCC 338 14. AIR 1975 SC 1234 15. (2010) 253 ELT 3 (SC) 16. AIR 1971 SC 1374 17. (2004) 1 SCC 574 18. (1962) 2 SCR 159 19. AIR 1965 SC 1728 20. AIR 1991 SC 1406 21. AIR 1991 SC 1538 22. (1994)5 SCC 672 23. 1959 Supp (2) SCR 256 24. (1955) 2 SCR 483 25. (1985) 1 SCC 591 26. AIR 1957 SC 281 27. (1989) 1 SCC 321 28. 1959 Supp (2) SCR 875 29. (1976) 1 SCC 128 30. AIR 1965 SC 59 31. (2005) 6 SCC 344 32. (2006) 1 SCC 46 33. (1965) 1 SCR 970 34. (1975) 2 SCC 482 35. AIR 1967 SC 1074 36. (1961) 2 SCR 679 37. (1973) 3 SCC 889 38. (1998) 6 SCC 590 39. (1967) 3 SCR 415 40. (1976) 1 SCC 226 41. AIR 1956 SC 35 42. AIR 1999 SC 1867 43. AIR 1989 SC 836 44. AIR 2001 SC 1832 45. (2006) 12 SCC 583 46. (1976) 1 SCC 245 47. (2006) 3 SCC 434 48. (1999) 6 SCC 418 49. (1985) 4 SCC 404 50. (1960) 1 SCR 200 51. (1964) 1 SCR 259 52. (2000) 7 SCC 12 53. AIR 1969 SC 1048 54. (1988) 2 SCC 293 55. AIR 1962 SC 159 56. (1987) Supp SCC 350 57. (1981) 4 SCC 173 58. (1984) 2 SCC 50 59. (2004)7 SCC 591 60. (1963) 3 SCR 893 61. AIR 1981 SC 1887 62. 1926 AC 37 63. (1940) 9 ITR 442 64. (1955) 1 SCR 810 65. AIR 1994 SC 2393 66. (1899)2 QB 158 67. 2003 (2) SCC 455 68. (2007) 2 SCC 230 69. AIR 2003 SC 2434 70. (1964) 2 All ER 627 71. (1973) 1 SCC 216 72. (1955) AC 696 (HL) 73. 1901 AC 102 74. AIR 2001 SC 1980 75. (2001) 5 SCC 407 76. (2001)8 SCC 676 77. (2001) 8 SCC 540 78. (1991) 4 SCC 139 79. AIR 1967 SC 1480 80. (1996) 6 SCC 44 81. (2006) 1 SCC 275 82. (2005) 6 SCC 404 83. (2002) 4 SCC 638 84. AIR 2001 SC 886 85. AIR 1992 SC 1846 86. (1997) 1 SCC 373 87. AIR 1945 PC 48 THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION Nos.13470 OF 2009; 13735, 16179, 18501 AND 27885 OF 2010 COMMON ORDER: (Per Hon’ble Sri Justice Ramesh Ranganathan) In this batch of writ petitions the petitioners seek to have the orders passed by the Appellate Deputy Commissioner rejecting their appeals, on the ground that that they had failed to comply with the statutory requirement of paying 12.5% of the disputed tax while filing the appeal within the prescribed time, set aside and to direct him to admit their appeals, and decide the matter in accordance with law. Before examining the contentions urged, it is necessary to briefly note the facts, to the extent relevant, in each of the writ petitions. W.P.No.18501 of 2010: For the assessment years 2004-05 to 2008-09, the 2nd respondent completed assessment and, by order dated 5.10.2009, levied tax. For the assessment year 2004-05, the tax levied was Rs.3,20,760/-. Aggrieved thereby, the petitioner carried the matter in appeal to the Appellate Deputy Commissioner (1st respondent) who issued show cause notice dated 31.12.2009 directing the petitioner to furnish proof of payment, of 12.5% of the disputed tax, within seven days from the date of receipt of the notice. The petitioner claims that the notices were served on their authorized representative on 4.2.2010, they had filed a letter dated 9.2.2010 stating that they had paid 12.5% of the disputed tax for the assessment years 2004-05 and 2005-06 vide cheque dated 28.1.2010, for the assessment years 2006-07 by cheque dated 15.02.2010, for the assessment year 2007-08 vide cheque dated 7.2.2010, and for the assessment year 2008-09 vide cheque dated 2.2.2010. The 1st respondent, however, rejected the appeal by order dated 17.4.2010, a copy of which the petitioner claims to have received only on 2.6.2010. W.P.No.27885 of 2010: The relief sought for in this writ petition is to declare the proceedings of the Appellate Deputy Commissioner dated 23.6.2010 and 3.8.2010, rejecting the appeals filed by the petitioner on 14.5.2010, as arbitrary and illegal; to direct the Appellate Deputy Commissioner to consider the petitioner’s representation dated 30.7.2010 whereby proof of payment of 12.5% of the disputed tax was furnished; and for admission of the appeal, and its disposal on merits. The petitioner was assessed to tax, by assessment order dated 29.3.2010, for the year 2006-07 under the Central Sales Tax Act, for Rs.47,08,526/-. Since they had been extended the benefit of tax deferment, the tax due was adjusted against the eligible amount as per their final eligibility certificate. Aggrieved thereby, the petitioner preferred an appeal to the Appellate Deputy Commissioner (2nd respondent) who issued notice dated 25.5.2010 calling upon them to furnish proof of payment of 12.5% of the disputed tax, (difference between the tax assessed and the tax admitted of Rs.22,49,514/-), and to show cause within 7 days. The petitioner submitted their reply thereto on 28.5.2010. Thereafter, by letter dated 30.7.2010, the petitioner forwarded a demand draft for Rs.2,81,189/- (D.D.No.311028 dated 30.7.2010) towards 12.5% of the disputed tax in the appeal filed before the Appellate Deputy Commissioner for the assessment year 2006-07. The Appellate Deputy Commissioner, in his proceedings dated 3.8.2010, observed that the appeal was already rejected on 23.6.2010 for failure to furnish proof of payment of 12.5% of the disputed tax at the time of filing of the appeal and, even if the appellant made good the lapses pointed out in the show cause notice for admission of the appeal subsequent to the rejection order, the same could not be considered. Aggrieved thereby the present writ petition. W.P.No.16179 of 2010: The relief sought for in this writ petition is to declare the action of the 1st respondent in rejecting the appeal, for non-payment of 12.5% of the disputed tax for maintenance of the appeal even though payment was made before the order of rejection was passed on 30.3.2010, as arbitrary and illegal. A consequential direction is sought to the 1st respondent to take the appeal on file, and to hear the same on merits. The 2nd respondent passed an order of assessment on 19.01.2010 levying tax of Rs.10,64,877/- on the petitioner. Aggrieved thereby, the petitioner preferred an appeal before the Appellate Deputy Commissioner on 20.02.2010. They did not, however, pay 12.5% of the disputed tax by that date. The 1st respondent, by proceedings dated 30.3.2010, informed the petitioner that, when the appeal was posted for hearing on admission on 20.3.2010, their authorized representative had appeared and had stated that the petitioner was not in a position to pay 12.5% of the disputed tax and, since the petitioner did not comply with Section 31 of the A.P. VAT Act, 2005 read with Rule 38(2) of the A.P.VAT Rules, the appeal could not be admitted. The appeal was, therefore, rejected. The petitioner claims to have paid Rs.1,17,091/- at the time of filing the appeal, and to have paid Rs.16,091/- vide challan No.1798 dated 19.4.2010 towards 12.5% of the disputed tax. It is their case that their authorized representative had approached the 1st respondent on 21.4.2010; it is only then that they came to know that the appeal had been rejected on 30.3.2010; there was no willful neglect or fault on their part in not paying the entire 12.5% of the disputed tax at the time of filing the appeal; it was only because of financial constraints that they could not pay the amount; and, except for non payment of 12.5% of the disputed tax, there were no other laches on their part. W.P.No.13735 of 2010: The relief sought for in this writ petition is to declare the action of the 1st respondent in rejecting their appeal, for non-payment of the entire 12.5% of the disputed tax, despite payment being made before the order of rejection dated 30.3.2010 was passed, as arbitrary and illegal. The petitioner seeks a consequential direction to the 1st respondent to take the appeal on file. The 2nd respondent passed an order of assessment dated 19.1.2010 levying tax of Rs.17,79,073/-. Aggrieved thereby the petitioner preferred an appeal to the 1st respondent, but did not pay 12.5% of the disputed tax. A notice of hearing was issued and, on 20.3.2010, the authorized representative of the petitioner appeared before the 1st respondent and explained that the petitioner was not in a position to pay the amount; Rs.1,30,627/- had been paid at the time of filing of the appeal; the balance Rs.91,758/- was paid vide challan No.1799 on 16.4.2010; and thereby 12.5% of the disputed tax, in its entirety, was paid. It is their case that their authorized representative had approached the office of the 1st respondent on 21.4.2010 and, while submitting the challan, came to know that the appeal had been rejected, for non-payment of 12.5% of the disputed tax, by order of the 1st respondent dated 30.3.2010. They would contend that failure to pay 12.5% of the disputed tax was only because of financial constrains; and there were no other laches on their part. W.P.No.13470 of 2009: The relief sought for in this writ petition is to declare the proceedings of the 1st respondent dated 9.1.2009, rejecting the appeal filed by the petitioner on 24.6.2008, as arbitrary and illegal; and to direct the 1st respondent to consider their representation dated 5.5.2009, enclosing thereto proof of payment of 12.5% of the disputed tax, for admission of the appeal. The 2nd respondent passed an order of assessment on 28.5.2008 for the assessment year 2002-03 (CST) levying tax of Rs.43,808/-. Aggrieved thereby the petitioner preferred an appeal in Form I. They were informed by proceedings dated 9.1.2009 that, while they had preferred an appeal in Form I, they had not filed proof of payment of 12.5% of the disputed tax; a notice was issued on 27.6.2008 calling upon them to comply with the omissions pointed out therein; even though six months had elapsed they did not comply with the omissions; and, in the absence of proof of payment of 12.5% of the disputed tax and the remaining admitted tax, the 1st respondent had no other alternative but to reject the appeal at the admission stage. The petitioner claims to have received a copy of the said order on 31.3.2009; to have submitted a representation on 5.5.2009 (which is said to have been received by the respondents on 6.5.2009) enclosing thereto proof of payment of Rs.5000/- towards 12.5% of the disputed tax vide challan No.1315 dated 28.4.2009; and to have paid the admitted tax of Rs.3814/- on 28.11.2009. In their representation the petitioners contended that, since they had now fulfilled the condition of payment of 12.5% of the disputed tax, their appeal should be admitted. Heard Sri S.R. Ashok, Learned Senior Counsel, Sri M.V.J. Kumar and Sri Kunuku Durga Prasad, Learned Counsel for the petitioners. Sri A.V. Krishna Koundinya and Sri P. Balaji Verma, Special Standing Counsel for Commercial Taxes, put forth their submissions on behalf of the respondents. Before examining the rival contentions, it is useful to read Section 19(1), 21(1) and (2) of the APGST Act, 1957 in juxta-position with Section 31(1), 33(1) and (2) of the A.P.VAT Act, 2005. APGST Act, 1957 A.P.VAT Act, 2005 n 19. Appeals:- y dealer objecting to any order passed or ding recorded by any authority under the ons of the Act other than an order passed or ding recorded by a an Additional Commissioner t Commissioner, Deputy Commissioner under ction (4 C) of Section 14 may within thirty days he date on which the order or proceeding was on him, appeal to such authority as may be bed: ed that the appellate authority may within a period of thirty days admit an appeal preferred period of thirty days if he is satisfied that the had sufficient cause for not preferring the within that period: ed further that an appeal so preferred shall not mitted by the appellate authority concerned the dealer produces proof of payment of tax ed to be due, or of such instalments as have ranted, and the proof of payment of twelve and r cent of the difference of the tax assessed by sessing authority and the tax admitted by the nt, for the relevant assessment year, in t of which the appeal is preferred. peal to the Appellate Tribunal:- y dealer objecting to an order passed or ding recorded - any prescribed authority on appeal under n 19, or y an Additional Commissioner or joint ssioner or Deputy Commissioner suo motu sub section (4-C) of Section 14 or under sub n (2) of section 20, may appeal to the Appellate al within sixty days from the date on which the r proceeding was served on him. e Appellate Tribunal may within a further period y days admit an appeal preferred after the of sixty days mentioned in sub section (1), if it fied that the dealer had sufficient cause for not ng the appeal within that period. ed that no appeal against the order passed Section 19 shall be admitted under sub-section sub-section (2), unless it is accompanied by ctory proof of the payment of fifty per cent of ax as ordered by the appellate Deputy 31 Appeal to Appellate authority: (1) Any VAT dealer or TOT dealer or any other dealer objecting to any order passed or proceeding recorded by any authority under the provisions of the Act other than an order passed or proceeding recorded by an Additional Commissioner or Joint Commissioner or Deputy Commissioner, may, within thirty days from the date on which the order or proceeding was served on him, appeal to such authority as may be prescribed: Provided that the Appellate Authority may within a further period of thirty days admit the appeal preferred after a period of thirty days if he is satisfied that the VAT dealer or TOT dealer or any other dealer had sufficient cause for not preferring the appeal within that period: Provided further that an appeal so preferred shall not be admitted by the appellate authority concerned unless the dealer produces proof of payment of tax admitted to be due, or of such installments as have been granted, and the proof of payment of twelve and half per cent of the difference of the tax assessed by the authority prescribed and the tax admitted by the appellant, for the relevant tax period, in respect of which the appeal is preferred. 33 Appeal to the Appellate Tribunal: (1) Any dealer objecting to an order passed or proceeding recorded (a) by any authority prescribed, on appeal under Section 31, or (b) by the Additional Commissioner, or Joint Commissioner or Deputy Commissioner under Section 21 or 32 or 38; or (c) by any authority following the ruling or order passed under Section 67; may appeal to the Appellate Tribunal within sixty days from the date on which the order or proceeding was served on him. (2) The Appellate Tribunal may within a further period of sixty days admit the appeal preferred after the period of sixty days specified in sub-section (1), if it i s satisfied that the dealer had sufficient cause for not preferring the appeal within that period: Provided that no appeal against the order passed under Section 31 shall be admitted under sub- section (1) or sub-section (2) of this Section unless it is accompanied by satisfactory proof of the payment of fifty percent of the tax, penalty, interest or any other amount as ordered by the Appellate authority under Section 31. ssioner under Section 19: ed further that no appeal against the order d under sub-section (2) of Section 20 shall be ed under sub-section (1) or sub-section (2), it is accompanied by satisfactory proof of the nt of the tax admitted by the appellant to be r in such instalments thereof as might have e payable as the case may be, and twenty five nt of the difference of the tax ordered by the nal authority under sub-section (2) of Section the tax admitted by the appellant: ed also that the assessing authority shall the said amount of twelve and half per cent or five per cent or fifty per cent of the difference assessed by the assessing authority or nal authority as the case may be and the tax ed and paid by the appellant, with simple t calculated at the rate of 18% per annum if the is not made within 60 days from the date of of the order passed under Section 19 or n 21. Section 19(1), its provisos and the second proviso to Section 21(2) of the APGST Act, 1957 (hereinafter referred to as the “Act”) are in pari materia with Section 31(1), its provisos, and the first proviso to Section 33(2) of the A.P. VAT Act, 2005 (hereinafter called the VAT Act) respectively. It is convenient, therefore, to hereinafter refer to Section 19 and 21 of the APGST Act, (unless otherwise necessary), irrespective of whether the order under challenge arises under the APGST Act or the A.P. VAT Act. I. DOES THE SECOND PROVISO PERMIT PAYMENT OF TAX, AND PRODUCTION OF ITS PROOF, WITHIN A REASONABLE TIME BEYOND SIXTY DAYS: It is contended, on behalf of the petitioners, that the only embargo under the second proviso to Section 19(1) is against admission of the appeal without there being evidence of payment of the admitted tax/12.5% of the disputed tax; the initial period of 30 days prescribed in Section 19(1), or the extended period of 30 days stipulated in the first proviso thereto, operate only in the realm of preferring the appeal; these conditions do not control the act of production of proof of payment of tax referred to in the second proviso; as the Deputy Commissioner is empowered, under Section 16(2)(a) of the APGST Act, to grant extension of time for payment of tax, or permit payment in installments, there is no justification in construing the second proviso as stipulating a time limit of 30 or 60 days even for pre-deposit of the admitted tax/12.5% of the disputed tax as stipulated in the second proviso; admission of the appeal is only a ministerial act, and not a judicial or a quasi judicial act; and no time limit is stipulated for complying with such a requirement under the Act or the Rules. Reliance is placed on Sujana Metal Products Ltd v. State of A.P.[1]; Shyam Kishore v. Municipal Corporation of Delhi[2], and other Orders of this Court wherein the appellate authority was directed to entertain the appeal after extending the period of limitation. While the first proviso to Section 19(1) of the Act was substituted by A.P. Act 8 of 1997 with effect from 4.1.1997, the second proviso thereto and the first proviso to Section 21(2) were substituted by A.P. Act 3 of 2002 with retrospective effect from 20.11.2001. The twin conditions of a valid appeal under Section 19(1) of the Act are (1) in the appeal, the dealer should have objected to an order passed or proceeding recorded by an authority under the provisions of the Act, other than an order passed under Section 14(4)(c) thereof; and (2) the appeal should have been preferred by the dealer, to the prescribed authority, within 30 days from the date on which the order or proceeding was served on him. Under Rule 33(1) of the APGST Rules, and Rule 59 of the APVAT Rules, an appeal lies to the Appellate Deputy Commissioner against an order passed or proceeding recorded by an officer not above the rank of Assistant Commissioner. If an appeal is preferred within 30 days, from the date of receipt of an order passed or proceeding recorded by the authority, the appellate authority is required to hear and adjudicate the appeal on its merits, subject to fulfillment of the other conditions prescribed in the Act and the Rules. The first proviso to Section 19(1) confers discretion on the appellate authority to admit an appeal preferred by a dealer beyond 30 days of receipt of the order passed by the authority. Exercise of such discretion is fettered by two conditions (1) the appeal ought to have been preferred within a further period of 30 days, after the period of 30 days from the date of receipt of the order passed by the authority; and (2) the appellate authority must be satisfied that the dealer had sufficient cause for not preferring the appeal within the original period of 30 days prescribed under Section 19(1) of the Act. It is only if the appeal is preferred between the 31st and 60th day from the date of receipt of a copy of the order passed by the authority, and the dealer has shown sufficient cause for not filing the appeal within the prescribed period of 30 days under Section 19(1) of the Act, can the appellate authority exercise discretion to admit the appeal. Such exercise of discretion to admit the appeal is neither ministerial nor a mere formality. If sufficient cause is not shown, the appellate authority is not obliged to condone the delay. The appellate authority does not have the discretion to admit an appeal filed after expiry of 60 days, from the date of receipt by the dealer of a copy of the order passed against him, or to decide such an appeal on its merits even if sufficient cause is shown by the dealer for not having preferred the appeal within the original period of 30 days. When a special limitation for the purpose of appeal is prescribed, the power of the Court under Section 5 of the Limitation Act stands curtailed and excluded. It is not essential for the special or local law to, in terms, exclude the provisions of the Limitation Act. It is sufficient if, on a consideration of the language of its provisions relating to limitation, the intention to exclude can be implied. If, on an examination of the relevant provisions, it is clear that the provisions of the Limitation Act are, necessarily, excluded then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. (Union of India v. Popular Construction Company[3]; Vidyacharan Shukla v. Khubchand baghel[4]; Hukumdev Narain Yadav v. Lalit Narain Mishra[5]; Manohar Lal Sharma v. Union of India[6]). In M/s. Parson Tools and Plants v. CST[7], the Supreme Court held that if the legislature, in a special statute, prescribes a certain period of limitation for filing a particular application thereunder, and provides in clear terms that such a period, on sufficient cause being shown, may be extended in the maximum only upto a specified time limit and no further, then the tribunal concerned has no jurisdiction to treat as within limitation an application filed before it beyond such maximum time limit specified in the statute, by excluding the time spent in prosecuting in good faith and due diligence any prior proceeding on the analogy of Section 14(2) of the Limitation Act. It is true that, in Mukri Gopalan v. Cheppilat Puthanpurayil Boobacker[8], the Supreme Court distinguished its earlier judgment in Parson Tools and