IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. VAT Appeals No. 28, 30 to 35 of 2008 DATE OF DECISION : 15.07.2008 M/s G.N. General Mills, Garhshankar Road, Banga, District Nawanshahr .... APPELLANT Versus State of Punjab and others ..... RESPONDENTS CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. Akshay Bhan, Advocate, for the appellant. * * * SATISH KUMAR MITTAL , J. This order shall dispose of 7 appeals (VAT Appeals No. 28, 30 to 35 of 2008), which are arising from the common order dated 29.2.2008, passed by the Punjab VAT Tribunal, Chandigarh (hereinafter referred to as `the Tribunal'), whereby 7 separate appeals, filed by the Department, have been entertained, after condoning the delay in filing the appeals, and those appeals have been fixed for hearing on merits. In these appeals, the appellant has challenged the aforesaid order on the ground that the Tribunal has entertained the second appeals, filed by the Department, as the earlier appeals, filed by the Department, were dismissed as withdrawn vide order dated 23.11.2007, without any liberty to file fresh appeals on the same cause of action. It is the VAT Appeal No. 28 of 2008 -2- contention of the learned counsel for the appellant that there is no provision under the Punjab Value Added Tax Act, 2005 (hereinafter referred to as `the Act') to file any supplementary appeal or a second appeal against the same order. In the present case, vide a common order dated 27.11.2006, Deputy Excise and Taxation Commissioner (Appeals) Jalandhar Division, Jalandhar, after setting aside the assessment order of the Assessing Authority, passed in favour of the petitioner, had remanded the matter for fresh decision. Against that order, the Department filed 7 separate appeals before the Tribunal. The petitioner objected the maintainability of those appeals on the ground that no sanction was granted by the competent authority for filing the appeals, but sanction was granted only for filing application. When this objection was raised by the petitioner, counsel for the Department made statement before the Tribunal that the Department be permitted to withdraw the appeals to enable them to file fresh appeals after removal of the defects in the sanction order. On that statement, the Tribunal vide its order dated 23.11.2007 ordered those appeals to be dismissed as withdrawn. Immediately, thereafter, the Department filed fresh appeals with proper sanction order by the competent authority, along with the applications for condonation of delay, against the aforesaid common order dated 27.11.2006, passed by the Deputy Excise and Taxation Commissioner (Appeals) Jalandhar Division, Jalandhar. The petitioner raised objection regarding maintainability of those appeals on the ground that earlier the VAT Appeal No. 28 of 2008 -3- Tribunal, while ordering the appeals to be dismissed as withdrawn, did not grant any specific permission/liberty to the Department to file fresh appeals with proper sanction order. The petitioner also raised objection that under the provision of the Act, the Appellate Authority cannot permit withdrawal of an appeal with a liberty to file fresh one after removal of the defects in the sanction order. The Tribunal, vide the common order dated 29.2.2008, has rejected the objections raised by the petitioner and after condoning the delay in filing the appeals, entertained the appeals, filed by the Department. Against the said order, the instant appeals have been filed. Learned counsel for the appellant has argued that once the appeals, filed by the Department without the sanction order, had been dismissed as withdrawn by the Tribunal, the second appeals filed by the Department were not maintainable, therefore, the same should not have been entertained by the Tribunal, particularly when at the time of permitting the Department to withdraw the earlier appeals, no permission was granted to file fresh appeals with proper sanction order. Learned counsel submits that even the Tribunal has no jurisdiction to permit an appeal to be withdrawn with permission to file fresh appeal on the same cause of action, as the Tribunal has to decide the appeal on merits. We do not find any force in the contentions raised by learned counsel for the appellant. A perusal of the order dated 23.11.2007, passed by the Tribunal, shows that on the objection raised by the petitioner regarding maintainability of the appeals for want of proper sanction, counsel VAT Appeal No. 28 of 2008 -4- for the Department sought specific permission to withdraw those appeals, so as to file fresh appeals after removal of the defects in the sanction order. The prayer was accepted and on the statement of counsel for the Department, the appeals were dismissed as withdrawn. In our opinion, the prayer of counsel for the Department to file fresh appeals after removal of defects in the sanction order was not specifically rejected and the said prayer was deemed to have been impliedly accepted, while dismissing the appeals as withdrawn. It is one of the recognized principles of law that when in an application for withdrawal of the petition, petitioner seeks permission to reserve his right to file fresh case, then in those circumstances, permission to file fresh case could be said to be impliedly granted in withdrawal order. In this regard, reference can be made to a Division Bench decision of the Orissa High Court in Hari Basudev v. State of Orissa and others, AIR 2000 Orissa 125. Earlier, the appeals were filed within limitation and fresh appeals were also filed just within 30 days of the withdrawal of the earlier appeals. Therefore, while filing the fresh appeals, applications for condonation of delay were filed and the Tribunal, by taking into consideration the facts and circumstances of the case, condoned the delay and entertained those appeals. We do not find any illegality in entertaining those appeals. The contention of learned counsel for the appellant that since the earlier appeals were filed without sanction order, therefore, the second appeals should not have been entertained, cannot be accepted, because if there was no sanction, then there was no appeal and the VAT Appeal No. 28 of 2008 -5- subsequent appeals were rightly entertained by the Tribunal, after condoning the delay. Regarding the second contention of learned counsel for the appellant that the Tribunal had no jurisdiction to permit the appellant to withdraw the earlier appeals with liberty to file fresh appeals and the earlier appeals will be deemed to be dismissed on merits, Section 63 (4) (b) of the Act clearly provides that the Tribunal after affording an opportunity of hearing to the parties, may pass such order, as it deems to be just and proper. In our opinion, under this Clause, the Tribunal is empowered to permit an appellant to withdraw the appeal and file fresh one after removing the defects, pointed out by the other side. In view of the above, we do not find any ground to interfere in the impugned order. Accordingly, all these appeals are without any merit and the same stand dismissed. ( SATISH KUMAR MITTAL ) JUDGE July 15, 2008 ( AUGUSTINE GEORGE MASIH ) ndj JUDGE