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SUPREME COURT OF INDIA
A.M. KHANWILKAR, AJAY RASTOGI, JJ.
M/S. S.E. Graphites Private Limited – Appellants
Versus
State of Telangana & Ors – Respondents
Civil Appeal Nos. 7574, 10433 of 2014, 2084 of 2015, 4098, 4099, 8452, 10670 of 2016, 3349 of 2018 and S.L.P. (C) Nos. 19961 of 2015, 6880 of 2019
Decided On : 10-07-2019
(a) APGST Act, 1957 - Section 19 (second Proviso) and 21(first Proviso) r/w Section 31(second proviso) and 33(first Proviso), AP VAT Act, 2005 - Pertaining 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 - Proof of payment of tax dues in respect of which the appeal is preferred can be filed until the appeal is considered for admission and/or condonation of delay in filing of the appeal by the Appellate Authority for the first time - It is open to assessee to file appeal within statutory period of limitation provided therefor and later on submit proof of deposit the specified tax dues before the appeal is taken up for consideration by the Appellate Authority for the first time - Appellate Authority has no power to extend the time to deposit the specified tax dues. (Para 8)
(b) APGST Act, 1957 - Section 19 (second Proviso) and 21(first Proviso) r/w Section 31(second proviso) and 33(first Proviso), AP VAT Act, 2005 - Not a provision of pre-deposit at stage of filing, institution or presentation of the appeal - But a provision stipulating payment of tax dues as a prerequisite or sine qua non for consideration of appeal on merits. (Para 9)
(c) Constitution of India - Article 136 - Grant of leave for SLP - Opens appellate jurisdiction of Supreme Court - Order impugned becomes the order appealed against - Court’s order will be an appellate order attracting ‘doctrine of merger’. (Para 11)
(d) Interpretation of judgment - Binding precedent - A judgment overruling, even impliedly, the impugned judgment - Is binding precedent. (Para 11)
(e) Interpretation of statute - Section 19, APGST Act, 1957 - Expression “admit the appeal” - ‘Admit’ in first proviso must be read to mean filing, institution or presentation of the appeal in the office of the Appellate Authority - ‘Admitted’ in second proviso has to be construed as analogous to expression “entertained”. (Para 12)
(f) Interpretation given by Supreme Court that proof of tax paid may be filed before or at the time of admission or entertaining the appeal - Unscrupulous parties may file defective appeals to delay hearing of the same by Appellate Authority - Directed therefore that 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. (Para 17)
(g) APGST Act, 1957 - Section 19 (second Proviso) and 21(first Proviso) r/w Section 31(second proviso) and 33(first Proviso), AP VAT Act, 2005 - Appellant filing proof of payment of tax due after rejection of the appeal - Of no avail. (Para 19)
(h) APGST Act, 1957 - Section 19 (second Proviso) and 21(first Proviso) r/w Section 31(second proviso) and 33(first Proviso), AP VAT Act, 2005 - Open to assessee to pay the tax due and file proof thereof before Appellate Authority during pendency of appeal and before it is taken up for the first time. (Para 23)
(i) Administration of justice - Judicial propriety - Specific plea of appellant not answered either by Appellate Authority or the High Court - Writ petition restored to files of High Court for fresh consideration. (Para 33, 39)
Facts of the case:
Appellants filed appeals against assessment of tax before Appellate Authority which has been rejected on the ground that the appellant-assessee had failed to comply with the precondition of producing proof of payment of tax admitted to be due or of such installments as may have been granted and/or the proof of payment of twelve and a half percent (12.5%) of the difference of the tax assessed by the assessing authority and the tax admitted by the appellant for the relevant assessment year in respect of which the appeal has been preferred by the concerned appellant-assessee.
Writ petitions thereagainst were also dismissed.
Finding of the Court:
The provisions in question stipulate payment of tax dues as a prerequisite or sine qua non for consideration of appeal on merits and not for filing.
Result: Civil Appeal Nos.7574/2014, 10433/2014, 2084/2015; Civil Appeal No.5345 of 2019 allowed. Civil Appeal Nos.4098/2016 & 4099/2016 dismissed. Civil Appeal No.8452/2016 disposed of. Civil Appeal No.5343 of 2019 and Civil Appeal No.10670/16 allowed and matter remitted back to High Court for fresh consideration. Civil Appeal No.3349/2018 to be heard separately.
JUDGMENT :
A.M. KHANWILKAR, J.
Civil Appeal Nos.7574/2014, 10433/2014, 2084/2015 and Civil Appeal No.5345 of 2019 (Arising out of S.L.P. (C) No.6880 of 2019)
1. Leave granted in SLP (C) No.6880 of 2019.
2. These Civil Appeals emanate from the orders passed by the Appellate Authority rejecting the appeal preferred by the concerned appellant(s) under the provisions of APGST Act, 1957 or AP VAT Act, 2005 or Telangana State VAT Act, 2005, as the case may be, on the ground that the appellant-assessee had failed to comply with the precondition of producing proof of payment of tax admitted to be due or of such installments as may have been granted and/or the proof of payment of twelve and a half percent (12.5%) of the difference of the tax assessed by the assessing authority and the tax admitted by the appellant for the relevant assessment year in respect of which the appeal has been preferred by the concerned appellant-assessee, warranting rejection of the appeal in terms of the second proviso of Section 19 and proviso of Section 21 (2) of the APGST Act, 1957 or second proviso of Section 31 and proviso of Section 33 (2) of the AP VAT Act, 2005. Similar position obtains regarding the provisions of Telangana State enactments.
3. The High Court dismissed the writ petitions filed by the concerned appellant following the decision of the coordinate bench of the High Court in Ankamma Trading Company Vs. Appellate Deputy Commissioner (CT), Guntur & Anr., (2011) 44 VST 189 (AP) and other decisions taking the same view, despite the appellant pointing out to the High Court that the decision in Ankamma Trading Company (supra) has been impliedly overruled by the Supreme Court in M/s. Innovatives Systems, Rep. by its Managing Partner Vs. State of Andhra Pradesh, Rep. by Principal Secretary to Government, Civil Appeal No.2230/2015 (arising out of SLP (C) No.1832/2015 decided on February 23, 2015). In that case, this Court after clearly noting that the High Court had relied upon the judgment and order passed by the Division Bench of the same High Court [in Ankamma Trading Company (supra)] to dismiss the writ petition preferred by the appellant, yet proceeded to allow the appeal filed by the appellant therein by setting aside the decision of the High Court. The appellant in that case had filed appeal within limitation period but deposited the twelve and a half percent (12.5%) of the difference of the tax assessed by the assessing authority in respect of which the appeal was preferred after the expiry of the limitation period specified in the first proviso of the concerned provision. This Court, nevertheless, held that the appellant having deposited the stipulated amount of twelve and a half percent (12.5%) as directed by the Appellate Deputy Commissioner (CT), the High Court ought to have condoned the delay in complying with the direction given by the Appellate Authority in that regard and thus restored the appeal with a direction to the Appellate Authority to decide the appeal on merits. Relying on the subsequent decisions of this Court in M/s. IOT Infrastructure & Energy Services Ltd., Rep. by its Deputy Manager (Accounts) Vs. State of Andhra Pradesh Rep. by its Principal Secretary to Government, (Civil Appeal No.12077/2016 decided on 14.12.2016) and M/s. Ranisati Trading Co. Rep. by its Managing Partner Vs. Commercial Tax Officer, Gajuwaka Circle, Visakhapatnam and Ors. (Civil Appeal No.5339/2017 decided on 17.04.2017), it is urged by the appellant-assessee that the High Court ought not to have disregarded those decisions on the specious ground that the same cannot be treated as a binding precedent and purportedly having been passed in exercise of plenary powers under Article 142 of the Constitution of India. Inasmuch as, looking at the decision in M/s. Innovatives Systems (supra) of this Court, there is hardly any doubt that the effect of the sai
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