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Furtado Food products, Sastan Post, Udupi, Rep by its Proprietor Robert Furtado v/s Assistant Commissioner of Commercial Taxes, Mangalore


Company & Directors' Information:- MANGALORE FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15135TN1984PTC011249

Company & Directors' Information:- COMMERCIAL PRODUCTS LTD. [Strike Off] CIN = U24232WB1941PLC010698

Company & Directors' Information:- FOOD POST INDIA PRIVATE LIMITED [Active] CIN = U55101UP2020PTC137111

    Writ Petition No.6492 of 2009 (T-RES) & Writ Petition Nos. 7620-7639 of 2009 (T-RES)

    Decided On, 26 March 2009

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE D.V. SHYLENDRA KUMAR

    For the Petitioner: H. Vani, Advocate. For the Respondent: K. M. Shivayogiswamy, (HCGP).



Judgment Text

(These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India, praying to Quash set- aside the common order under Section 62 passed by the R2 dt. 18.2.2008 vide anx- C and etc.,).


Writ petitions by an assessee assessed under the provisions of the Karnataka value added tax Act, 2003 [for short the Act] who was aggrieved by the order dated 11.2.2008 passed under Section 38[1] of the Act for the period from April 2005 to December 2006 as per the order passed by the Assistant Commissioner of Commercial taxes [Audit-7], DVO, Mangalore and who had preferred an appeal against this order before the Joint Commissioner of Commercial Taxes [Appeals], Mangalore who unfortunately has dismissed the appeal in terms of his order dated 18.2.2009 [copy at Annexure-C] as one barred by limitation.


2. It is aggrieved by this appellate order dismissing the appeal presented on 17.3. 2008 as having been barred by period of limitation as per the provisions of rule 148[4]of the Karnataka value Added tax Rules, 2005 [for short the Rules] as the appellate authority found that the petitioner had received the order impugned in the appeal as on 15.2.2008, but had presented the appeal only on 17.3.2008 and therefore the appeal was presented a day after the expiry of period of limitation, the present Writ petition questioning the legality of this order.


3. Having regard to the limited nature of controversy, emergent notice had been issued to the respondents and Sri. Shivayogiswamy, learned Government Pleader directed to take notice for the respondents.


4. I have heard Smt. Vani, learned counsel for the petitioner and Sri. Shivayogiswamy, learned Government Pleader appearing for the respondent.


5. While submission of Smt. Vani, learned counsel for the petitioner is that the appellate authority did not even give a clue or opportunity to the petitioner indicating that there was a delay in the presentation of the appeal, which perhaps could have been explained and therefore the order suffers from this infirmity.


6. Submission of Sri. Shivayogiswamy, learned Government Pleader appearing for the respondents is that the appeal to be within the time stipulated under the Act and Rules should have been filed by or before 16.3.2008 and having been filed on 17.3.2008 it was a day beyond time.


7. Smt. Vani, learned counsel for the petitioner points out that 16.3.2008 being a Sunday, the appeal presented on the next working day should be taken to be within the period of limitation in terms of the provisions of Section 10 of the Mysore General Clauses Act, 1899, which reads as under:


?10. Computation of time- Where, by any More Act or Karnataka Act made after the commencement of this Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or the last day or the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open:


Provided that noting in this section shall apply to any act or proceeding to which the Indian limitation Act, 1908 applies?


8. It is also submitted by Smt. Vani, learned counsel for the petitioner that assuming there was a delay in presentation of the appeal, the appeal could not have been dismissed straight away but the appellate authority should have issued a notice in Form Vat 435 requiring rectification of the defects including as in the present case to file an application for condonation of delay so that requirement of rule 148[1] of the Rules is fulfilled for effectuating the provisions of Section 62 [3] of the Act and submits that the appellate order suffers from infirmity for this reason also.


9. The relevant statutory provisions such as sections 62[2], 62[3] of the Act read with rules 148[4] and 149[3], 149[4],149[5]and 149[6] of the rules all read as under:


?62. Appeals:


[2] The appeal shall be preferred,


[a] In respect of an order of assessment, within thirty days from the date on which the notice of assessment, was served on the appellant, was served on the appellant, and


[b] in respect of any other order or proceedings, within thirty days from the date on which the order was communicated to the appellant.


[3] The appellate authority may admit an appeal preferred after the period as aforesaid but within a further period of one hundred and eight days, if it is satisfied that the appellant had sufficient cause for not preferring the appeal within that period.


Rule 148: Appeal under Section 62 to the appellate authority:


[4] Where the appeal is filed after the expiry of the period of limitation, it shall be accompanied by an application for condonation of delay supported by a saworn affidavit as to the cause of the delay.


149. Form of appeal and procedure to be followed in case of appeal under Section 62:


[3] If the court fee payable has not been paid, or proof of payment of the tax not disputed in the appeal, has not been produced or the papers presented are not in conformity with the provisions of the Act and these rules, the appellate authority shall issue notice in Form VAT 435 requiring rectification of the defects, and the appellant or his agent or pleader shall rectify the defects within a period of thirty days from the date of issue of the notice.


[4] If the defects are not rectified within the time specified , the appellate authority, after giving the appellant or his representative the opportunity to show cause in writing against the notice of requiring rectification, shall pass an order directing the appeal to be registered or rejected.


[5] Where the appellate authority is satisfied that the appellant was prevented from presenting the appeal for sufficient cause within the time specified, he may condone the delay and admit the appeal.


[6] Where the appellate authority is not satisfied with the cause shown by the appellant for the delay, he may , after recording reasons, reject the appeal?.


10. Though Sri. Shivayogiswamy, learned Government Pleader would submit that for such purpose an application should have been made etc., it is not necessary to go into further details of this aspect as the appeal could be taken to be one presented within time taking note of the fact that last date for presentation of the appeal was a holiday and it was presented the very next day.


11. Assuming for argument sake, there is any delay in the presentation of the appeal under Section 62 of the Act in terms of the rules it could not have been dismissed in limine but the appellant should have been notified for filing the application for condonation of delay and only o examination of such application the appeal could be disposed of and not otherwise.


12. However, in the present case, as the appeal should be t

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aken to be filed within the period of limitation in the wake of the provisions of Section 10 of the Mysore General Clauses Act, 1899, the question of filing an application seeking for condonation of delay does not arise. 13. In view of this undisputed position, the impugned order at Annexure-C is quashed by issue of a Writ of certiorari and the matter is remanded to the appellate authority to examine the appeal on merits, treating the appeal as one presented within the period of limitation with directions, to dispose of the appeal on merits and as per law. 14. Writ Petitions are allowed. Rule issued and made absolute. 15. Sri. Shivayogiswamy, learned Government Pleader permitted to file memo of appearance on behalf of the respondents within eight weeks.
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