Case: M/S. S.E. GRAPHITES PRIVATE LIMITED Vs. STATE OF TELANGANA

decision of the Division Bench of the High Court in Ankamma Trading Company (supra). Thus, it cannot be considered as a binding precedent. We are not impressed by this submission. Indeed, the decision of this Court in M/s. Innovatives Systems (supra), is a brief judgment. That, however, would make no difference. For, it is well established that once a special leave petition has been granted, the doors for the exercise of appellate jurisdiction of this Court have been let open. Resultantly, the order impugned before the Supreme Court became an order appealed against and any order passed thereafter would be an appellate order and attract the doctrine of merger despite the fact that the order is of reversal or of modification or of affirming the order appealed against and including is a speaking or non-speaking one. This legal position has been restated in Kunhayammed (supra). Having said this, we must reject the argument of the respondent¬State that the decision of this Court in M/s. Innovatives Systems (supra), and other decisions following the same, cannot be considered as binding precedent. 12. In addition, the appellant¬assessee has rightly placed reliance on the decision of this Court in Ranjit Impex (supra). In that case, the Court considered almost similar stipulation in Section 51 of the Tamil Nadu VAT Act, 2006. Indeed, the second proviso therein uses the expression no appeal shall be entertained, unlike the expression used in the provisions under consideration that the appeal so preferred shall not be admitted. We are conscious of the fact that the first proviso pertaining to maximum period of delay to be condoned by the Appellate Authority, also uses the expression admit the appeal. That expression admit, however, must be read to mean filing, institution or presentation of the appeal in the office of the Appellate Authority. Whereas, the expression admitted used in the second proviso will have to be construed as analogous to expression entertained. We are inclined to take this view as the setting in which the provisions under consideration appear leaves no manner of doubt that it is ascribable to the event of taking up the appeal for consideration, for the first time, to admit it on merits or otherwise and/or for condonation of delay in filing the appeal, as the case may be. Before that event occurs, it is open to the appellant to deposit the tax dues in respect of which the appeal is preferred and produce proof of such deposit before the Appellate Authority. 13. This view is reinforced from the exposition of this Court in Ranjit Impex (supra), wherein the view taken by the Division Bench of the High Court of Madras that the proof of deposit of tax has to be produced at the time when the appeal is taken up for consideration, but not at the time of filing or presentation of the appeal, has been upheld. 14. Even the decision of this Court in M/s. Lakshmi Rattan Engineering Works Ltd. (supra), heavily relied upon by the respondent-State, does not militate against the view taken by us ¬ that the true purport of the said proviso is that the Appellate Authority shall proceed with the consideration of appeal for admission for hearing on merits or otherwise and/or for condonation of delay in filing appeal, as the case may be, if the proof of payment of the specified tax dues referred to in the said proviso is produced by the appellant on the first date of such consideration of the appeal. Similarly, the case of Narayan Chandra Ghosh (supra), will be of no avail to the respondent, wherein the Court opined that there is an absolute bar to entertain an appeal under Section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002, unless the conditions and stipulation are fulfilled. Inasmuch as, the second proviso under consideration does not require payment of tax dues referred to therein, at the time of filing, institution or presentation of the appeal but the proof of such payment has been made, is required to be produced before the Appellate Authority at the first hearing of the appeal; failing which the Appellate Authority would be well within its jurisdiction to reject it rather duty bound not to proceed with the appeal on merits and to reject the same at the threshold on the ground of an institutional defect. 15. For the view that we have taken, it is wholly unnecessary to deal with the other reported decisions relied upon by the parties or to deal with other arguments which have no bearing on the conclusion reached by us. 16. Reverting to the factual position in the appeals under consideration, admittedly, the appellant¬assessee had deposited the specified tax dues before the date on which appeal preferred by them was taken up for consideration for the first time for admission on merits. In such a situation, the stated proviso becomes unavailable to reject the appeal on the ground of institutional defect. In this view of the matter, all these appeals must succeed. 17. While parting, we may observe that taking advantage of the interpretation given by us, it is possible that some unscrupulous litigant (assessee) may file an appeal within the limitation period but keep it under defect so that the same does not proceed for consideration before the Appellate Authority. To obviate such a mischief, we hold and direct that the Appellate Authority shall be obliged to take up every singular appeal for consideration for admission on merits and/or for condonation of delay in filing the appeal for the first time, no later than thirty days from the date of its filing, institution or presentation in the office of the Appellate Authority. This direction shall be complied with by all concerned meticulously, without any exception. That is the only way to secure the interests of the Revenue and at the same time to effectuate the purpose underlying the proviso regarding the deposit of specified amount of tax dues.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]8. These provisions have been interpreted by the Division Bench of the High Court in the case of Ankamma Trading Company (supra). We are essentially concerned with the second proviso of Section 19 and Section 31 of the respective enactment; and first proviso of Section 21(2) and Section 33(2) of the respective enactment. Upon reading the Section under consideration as a whole, it is evident that the first proviso in the concerned Section (Section 19 and Section 31, as the case may be) pertains to limitation period for filing of an appeal; and discretion of the Appellate Authority to condone the delay in filing of such appeal, up to a maximum period specified therein. Indeed, the second proviso is part of the same Section. However, it is an independent condition and in one sense, mutually exclusive condition mandating or enjoining the appellant to produce proof of payment of tax dues in respect of which the appeal is preferred. That obligation, in our opinion, can be discharged until the appeal is considered for admission and/or condonation of delay in filing of the appeal, as the case may be, by the Appellate Authority for the first time. We are inclined to take this view as even the High Court in Ankamma Trading Company (supra) had justly noted that the said proviso does not provide for any specific period within which the tax dues should be paid. Moreover, there is no express stipulation to deposit the tax dues in respect of which the appeal is preferred, at the time of its filing, institution or presentation as such. In the absence of such a clear stipulation, it must necessarily follow that it is open to the assessee to file the appeal within the statutory period of limitation provided therefor and later on, deposit the specified tax dues but before the appeal is taken up for consideration by the Appellate Authority for the first time – be it for condonation of delay in filing the appeal and/or to admit it on merits or otherwise. The proof of such payment having been made could be produced thereat. Failing which, the Appellate Authority will have no other option but to reject the appeal on that count. The Appellate Authority has no power to extend the time to deposit the specified tax dues9. Suffice it to observe that, stricto sensu, the said proviso is not a provision of pre-deposit at the stage of filing, institution or presentation of the appeal as such; but is a provision stipulating payment of tax dues as a pre-requisite or sine qua non for consideration of appeal on merits or otherwise and/or for condonation of delay in filing the same, as the case may be, for the first time. If we may say so, it is also to impose fetter on the Appellate Authority from admitting the appeal for consideration on merits. It is well recognized that filing, institution or presentation of appeal in the office of the Appellate Authority is an independent event than the appeal being taken up for consideration for the first time for being admitted on merits or otherwise and/or for condonation of delay in filing it, as the case may be. There is no reason to interpret the stated proviso in any other manner lest, inevitably, it would result in re¬writing the same and entail in doing violence to the legislative intent. Presumably, this Court in M/s. Innovatives Systems (supra), and other decisions rendered following the same, therefore, was persuaded to allow the appeal preferred by the assessee and to relegate the parties before the Appellate Authority for consideration of the appeal for admission on merits10. Concededly, this Court was conscious of the decision in Ankamma Trading Company (supra). In that, the judgment under challenge before it in the concerned appeal was founded on the view already taken by the coordinate bench of the same High Court [including in Ankamma Trading Company (supra)]. It has been so recorded by this Court. In that sense, the legal position expounded in Ankamma Trading Company (supra), stood impliedly overruled, even though that decision has not been adverted to or expressly overruled by this Court11. The argument of the respondent proceeds that the decision in M/s. Innovatives Systems (supra), neither refers to any specific provision nor has it expressly over turned the decision of the Division Bench of the High Court in Ankamma Trading Company (supra). Thus, it cannot be considered as a binding precedent. We are not impressed by this submission. Indeed, the decision of this Court in M/s. Innovatives Systems (supra), is a brief judgment. That, however, would make no difference. For, it is well established that once a special leave petition has been granted, the doors for the exercise of appellate jurisdiction of this Court have been let open. Resultantly, the order impugned before the Supreme Court became an order appealed against and any order passed thereafter would be an appellate order and attract the doctrine of merger despite the fact that the order is of reversal or of modification or of affirming the order appealed against and including is a speaking or non-speaking one. This legal position has been restated in Kunhayammed (supra). Having said this, we must reject the argument of the respondent¬State that the decision of this Court in M/s. Innovatives Systems (supra), and other decisions following the same, cannot be considered as binding precedent12. In addition, the appellant¬assessee has rightly placed reliance on the decision of this Court in Ranjit Impex (supra). In that case, the Court considered almost similar stipulation in Section 51 of the Tamil Nadu VAT Act, 2006. Indeed, the second proviso therein uses the expression no appeal shall be entertained, unlike the expression used in the provisions under consideration that the appeal so preferred shall not be admitted. We are conscious of the fact that the first proviso pertaining to maximum period of delay to be condoned by the Appellate Authority, also uses the expression admit the appeal. That expression admit, however, must be read to mean filing, institution or presentation of the appeal in the office of the Appellate Authority. Whereas, the expression admitted used in the second proviso will have to be construed as analogous to expression entertained. We are inclined to take this view as the setting in which the provisions under consideration appear leaves no manner of doubt that it is ascribable to the event of taking up the appeal for consideration, for the first time, to admit it on merits or otherwise and/or for condonation of delay in filing the appeal, as the case may be. Before that event occurs, it is open to the appellant to deposit the tax dues in respect of which the appeal is preferred and produce proof of such deposit before the Appellate Authority13. This view is reinforced from the exposition of this Court in Ranjit Impex (supra), wherein the view taken by the Division Bench of the High Court of Madras that the proof of deposit of tax has to be produced at the time when the appeal is taken up for consideration, but not at the time of filing or presentation of the appeal, has been upheld14. Even the decision of this Court in M/s. Lakshmi Rattan Engineering Works Ltd. (supra), heavily relied upon by the respondent-State, does not militate against the view taken by us ¬ that the true purport of the said proviso is that the Appellate Authority shall proceed with the consideration of appeal for admission for hearing on merits or otherwise and/or for condonation of delay in filing appeal, as the case may be, if the proof of payment of the specified tax dues referred to in the said proviso is produced by the appellant on the first date of such consideration of the appeal. Similarly, the case of Narayan Chandra Ghosh (supra), will be of no avail to the respondent, wherein the Court opined that there is an absolute bar to entertain an appeal under Section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002, unless the conditions and stipulation are fulfilled. Inasmuch as, the second proviso under consideration does not require payment of tax dues referred to therein, at the time of filing, institution or presentation of the appeal but the proof of such payment has been made, is required to be produced before the Appellate Authority at the first hearing of the appeal; failing which the Appellate Authority would be well within its jurisdiction to reject it rather duty bound not to proceed with the appeal on merits and to reject the same at the threshold on the ground of an institutional defect15. For the view that we have taken, it is wholly unnecessary to deal with the other reported decisions relied upon by the parties or to deal with other arguments which have no bearing on the conclusion reached by us16. Reverting to the factual position in the appeals under consideration, admittedly, the appellant¬assessee had deposited the specified tax dues before the date on which appeal preferred by them was taken up for consideration for the first time for admission on merits. In such a situation, the stated proviso becomes unavailable to reject the appeal on the ground of institutional defect. In this view of the matter, all these appeals must succeed17. While parting, we may observe that taking advantage of the interpretation given by us, it is possible that some unscrupulous litigant (assessee) may file an appeal within the limitation period but keep it under defect so that the same does not proceed for consideration before the Appellate Authority. To obviate such a mischief, we hold and direct that the Appellate Authority shall be obliged to take up every singular appeal for consideration for admission on merits and/or for condonation of delay in filing the appeal for the first time, no later than thirty days from the date of its filing, institution or presentation in the office of the Appellate Authority. This direction shall be complied with by all concerned meticulously, without any exception. That is the only way to secure the interests of the Revenue and at the same time to effectuate the purpose underlying the proviso regarding the deposit of specified amount of tax duesCivil Appeal Nos.4098/2016 & 4099/201619. These appeals were heard analogously with Civil Appeal No.7574/2014. In this set of appeals, admittedly, the appellant¬ assessee deposited the amount after the appeal filed by them came to be rejected by the Appellate Authority. In that sense, the appellant-assessee failed to produce proof of payment of tax dues in respect of which the appeal was preferred before the Appellate Authority when their appeal was taken up for consideration for admission. In Civil Appeal No.7574/2014, we have held that it is open to the assessee to deposit the amount before the event of first date of hearing of the appeal for admission and/or for condonation of delay in filing the appeal.21. This appeal was analogously heard along with Civil Appeal No.7574/2014. In the present appeal, the State has challenged the judgment and order passed by the High Court in Writ Petition No.22337 of 2015 and, in particular, the liberty granted to the respondent (writ petitioner) to pay the requisite amount after expiry of the limitation period prescribed under Section 33 of AP VAT Act, 2005 and on such deposit being made, the Appellate Authority is directed to consider the appeal on merits22. The background in which such direction came to be issued, can be discerned from the appeal filed by the State. To wit, the respondent, who was dealing in works contracts and was registered under APGST Act, 1957, was assessed by the appropriate authority but that assessment was revised by the Commercial Tax Officer by passing a revision order dated 25 th March, 2013. Against that decision, respondent¬assessee preferred appeal before the State Sales Tax Appellate Tribunal. During the pendency of the said appeal, respondent filed a writ petition to challenge the orders passed by the Commercial Tax Officer dated 27 th February, 2013 and 25 th March, 2013. That writ petition has been disposed of by the High Court vide impugned judgment, with liberty to comply with the condition of paying the tax dues in terms of the second proviso of the concerned provision within a period of six weeks from the date of receipt of the copy of order and upon such compliance, the Appellate Authority would decide the pending appeal on merits23. Having regard to the exposition in Civil Appeal No.7574 of 2014, decided today, it must follow that if the appeal filed by the respondent is still pending and has not been taken up for consideration so far by the Appellate Authority, only then it would be open to the respondent to deposit the requisite amount and produce the proof of such deposit before the Appellate Authority. If, however, the appeal has already been taken up for consideration for being admitted on merits or otherwise and by that date the respondent had not deposited the requisite amount as prescribed in terms of stated proviso, the Appellate Authority would be well within its jurisdiction and rather duty bound to reject the appeal on the ground of an institutional defect. That is a matter to be considered by the Appellate Authority. Besides this observation, nothing more is required to be stated in this appeal filed by the Stateg out of SLP (C) No.19961/2015)26. This appeal takes exception to the judgment and order dated 31 st October, 2014 passed by the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh in Writ Petition No.837 of 2014, whereby the writ petition filed by the assessee challenging the order passed by the second respondent-Appellate Authority dated 31 st December, 2013 came to be rejected. The appeal was dismissed on the sole ground that the appellant had failed to pay the required twelve and a half percent (12.5%) disputed tax in terms of Section 31 of AP VAT Act, 2005. Initially, the Commercial Tax Officer passed an assessment order on 11 th June, 2012. The appellant filed appeal against the said assessment order on 11 th July, 2012. The appellant was called upon by the Appellate Authority vide communication dated 12 th July, 2012 to make good the short payment of pre¬deposit in the sum of Rs.1,35,00,512/¬ as also the institution fee. The appellant filed response to the said communication contending that there was input tax credit to the account of the appellant in the sum of Rs.1080,01,63,420/¬ and that amount would arise only in respect of the tax paid on taxable purchases effected within the State. Despite that factual aspect brought to the notice of the first Appellate Authority, it rejected the appeal for non-payment of pre¬deposit amount vide order dated 24 th July, 2012. This was an ex¬parte order27. The appellant then filed representation to the assessing authority for issuing tax credit certificate for giving necessary adjustments against the taxes payable for 04/2010 to 06/2011 and pointing out the order of the Tribunal dated 18 th October, 2011 which was communicated long back but not implemented thus far. The appellant, therefore, submitted new representation to the assessing authority on 15 th September, 2012. The Commercial Tax Officer eventually, issued a certificate on 12 th October, 2012 certifying that the appellant has input tax credit of Rs. 92,01,606/-, eligible to be refunded either in cash or adjusted. On 13 th October, 2012, the Commercial Tax Officer issued proceedings holding that the appellant has an excess tax credit of Rs.66,46,284/- for adjustment or refund28. The appellant being aggrieved by the orders passed by the Appellate Deputy Commissioner rejecting appeal on 24 th July, 2012 on the ground of non-payment of requisite disputed tax amount, filed second appeal before the Sales Tax Appellate Tribunal. That came to be allowed by setting aside the order rejecting the first appeal and instead directing the first Appellate Authority to restore the appeal and hear the appellant, as the order dated 24 th July, 2012 was an ex parte order passed without hearing the appellant29. In remanded proceedings, appellant filed evidence before the first Appellate Authority on 21 st July, 2013 and requested to consider the evidence and give adjustment of the excess payment due to the appellant as certified by the assessing authority. Thus, the appellant requested the Appellate Authority to accept the tax credit certificates and take the appeal on file for disposal on merits. Despite production of the said certificates, the Appellate Deputy Commissioner once again called upon the appellant to pay the balance amount towards pre¬deposit, vide communication dated 15 th May, 2013. In response thereto, the appellant filed representation reiterating its earlier stand. Nevertheless, the Appellate Deputy Commissioner once again rejected the appeal on 31 st December, 2013, for non¬payment of pre¬deposit amount primarily relying upon the judgment of Ankamma Trading Company (supra). Eventually, the appellant challenged the aforementioned decision by filing writ petition No.847 of 2013. That writ petition has been dismissed by the High Court on the basis of the exposition in Ankamma Trading Company (supra)30. The principal grievance of the appellant is that after remand, the first Appellate Authority failed to consider the specific stand taken by the appellant that it was entitled to adjustment of the amount mentioned in the tax credit certificate and if so done the appellant had complied with the pre¬condition of deposit of twelve and a half percent (12.5%) of the amount in respect of which the appeal was filed by the appellant before the first Appellate Authority. Although, this plea was specifically taken before the Appellate Authority, the judgment of the Appellate Authority has not analysed the same at all. Instead, it proceeded to dismiss the appeal merely by relying on the exposition in Ankamma Trading Company (supra). Similarly, even the High Court after recording this argument of the learned counsel for the appellant, has not analysed the same and mechanically rejected the writ petition on the ground that appellant had failed to comply with the pre¬condition of deposit. This approach of the High Court as well as of the first Appellate Authority is the subject matter of assail in the present appeal31. We have heard the counsel for the parties. As regards the legal position expounded in Ankamma Trading Company (supra), we have already answered the same in Civil Appeal No.7574/2014 decided today. That appeal was heard along with all connected matters. In the present case, however, the additional point which arises is whether the appellant was entitled for adjustment of the amount mentioned in the tax credit certificate issued in favour of the appellant. Admittedly, the appellant had specifically taken that plea before the first Appellate Authority. However, as already mentioned hitherto the first Appellate Authority failed to analyse that aspect ¬ which it was expected to do, in terms of the earlier order passed by the second Appellate Authority and even otherwise.32. However, even the High Court has not answered this specific plea urged by the appellant, in the impugned judgment. If the appellant is right in contending that the appellant is entitled for an adjustment of amount and if so done, there would be no need for the appellant to deposit twelve and a half percent (12.5%) amount as required by the second proviso of Section 31 of the Act. The appellant had relied on the decisions of this Court to buttress that argument. However, the same has remained to be analysed and considered even by the High Court33. In that view of the matter, we deem it appropriate to set aside the impugned judgment and relegate the parties before the High Court for reconsideration of the Writ Petition No.837/2014 afresh on its own merits in accordance with law and including in light of decision of this Court in Civil Appeal No.7574/2014 decided today. All contentions available to both sides in the remanded writ petition are left open to be considered on its own merits and in accordance with law34. Accordingly, this appeal is allowed. The impugned judgment and order passed by the High Court dated 31 st October, 2014 in Writ Petition No.837/2014 is set aside and instead the writ petition is restored to the file of the High Court for fresh consideration in light of the observations made hitherto. All contentions available to the parties are left open. All pending applications are also disposed of. No order as to costsUpon perusal of order passed by the Appellate Authority, it is noticed that even the Appellate Authority rejected the appeal without taking notice of the prayer made by the appellant on oath that a tax credit of Rs.10,67,683/- is available to the appellant and that such credit has not been adjusted towards any other tax liability and can be adjusted towards the twelve and a half percent (12.5%) of disputed tax amount of Rs.67,57,696/¬, which comes to Rs.4,44,712/- only. The order of the Appellate Authority, as communicated to the appellant, reads thus:The appeal petition along with stay petition (main appeal & penalty appeal) are returned as the same are not in accordance in terms of second provision to sec.31(1) of read with Rule 38 of the AP VAT, 2005 for the reasonProvided 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 instalments as have been granted and the proof of payment of 12.5% of the difference of the tax assessed and the tax admitted by the appellant, for the relevant tax period, in respect of which the appeal is preferredFurther they have not filled the challan for appeal fee in original and also medical certificate for delay in submission of the appealHence, in view of the above, the admission of the two appeals stand rejected38. Even the High Court has failed to consider this aspect of the matter. Whereas, if the representation/request made by the appellant is just and deserved to be accepted, the appellant would be right in contending that no payment towards the amount specified in the stated proviso under consideration was required to be made by the appellant and for that reason, the appeal preferred by the appellant ought to proceed for consideration for admission on merits. In that, upon accepting the representation to adjust the tax credit of Rs.10,63,683/¬, a certificate/endorsement could be issued to the appellant by the department so that the said amount is adjusted towards payment of specified amount of tax dues including twelve and a half percent (12.5%). There is force in this submission. However, instead of examining this plea raised by the appellant in this appeal, we deem it proper to relegate the parties before the High Court to consider the same on its own merits, in accordance with law. We do not wish to dilate on any other contention in this judgment. We leave all questions and contentions, available to both sides, open to be decided by the High Court on its own merits40. This appeal was tagged along with the Civil Appeal No.7574/2014 and other connected matters. However, in those cases, the High Court had rejected the writ petition on the sole ground that the concerned writ petitioner had failed to comply with the condition of deposit prescribed in terms of stated proviso of the provision(s) under consideration. In none of these cases, the High Court considered the matter on merits regarding the challenge to the original assessment order. In the present appeal, the appellant cannot be heard to agitate the question already decided in Civil Appeal No.7574/2014 as nothing has been brought to our notice to show that the appellant had deposited the specified tax dues, in respect of which the appeal was filed, before the first date of consideration of the appeal by the Appellate Authority.