Writ petition filed against order of appellate authority for quashing dismissed.

A.S.Venkatachalamoorthy. J.

1. The prayer that is sought for in this Writ Petition is to call for the records relating to the Order dated 25.3.1999 passed by the 5th respondent/Tribunal in T.P. No.3091 of 1997 read with the Order dated 27.9.1990 in TNGST No.584757 of 1989-90 issued by the 3rd respondent and quash the same and consequently direct the respondents to pass orders on merits after giving an opportunity of hearing to the petitioner in accordance with law.

2. The brief facts are as follows:-

The petitioner/Society is registered under the Pondicherry Co-operative Societies Act with its registered office at Pondicherry. The Society serves food and drinks to its customers. During 198990 the annual turnover was roughly about Rs.98 lakhs. The 4th respondent herein passed the assessment order dated 27.9.1990 in form No.19 for the assessment year 1989-90. A penalty under Section 12 (5) (iii) to the extent of Rs. 3,58,537 was also levied. On 5.11.1990, the petitioner addressed the Appellate Assistant Commissioner, Commercial Taxes, Cuddalore, requesting him to instruct the Deputy Commercial Tax Officer to withhold the Assessment orders and further action to recover the arrears, as the final exemption orders are awaited from the Government of Tamil Nadu. Another communication dated 8.11.1990 was sent to the Assistant Commissioner, Commercial Taxes, Cuddalore with a similar request. The Assistant Commissioner, Commercial Taxes by a Communication dated 5.2.1991 informed the petitioner that the Assistant Commissioner, Commercial Taxes, Cuddalore is not the appellate authority and that the petitioner could seek legal remedies as per law. Thereafter, the petitioner filed an appeal under Section-31 in Form No.3 on 1.2.1991. The appellate authority on 8.2.1991 passed an order, dismissing the appeal on the ground that the same was filed with a delay of 93 days from the date of actual due. Aggrieved by the said Order, the petitioner filed an appeal before the Sales Tax Appellate Tribunal ie., the 2nd respondent herein. By an Order dated 19.9.1991, the 2nd respondent dismissed the said appeal viz., Tribunal Appeal No.271 of 1991 holding that the Appellate Assistant Commissioner, Commercial Taxes, Cuddalore is perfectly justified in rejecting the said petition. Being aggrieved by the said Order, the petitioner filed W.P. No. 14886 of 1991 before the High Court, Madras. Subsequently, the Appeal was transferred to the Tamil Nadu Taxation Special Tribunal and renumbered as T.P. No.3091 of 1997. By an order dated 25.3.1999, the Special Tribunal also dismissed the petition, holding that the appeal filed by the petitioner before the Appellate Assistant Commissioner was barred by limitation since according to the provisions of the Act any delay beyond 30 days could be excused only for a further period of 30 days, whereas the petitioner had filed the appeal with a delay of 93 days. The present Writ Petition has been filed against the said Order of the 5th respondent viz., the Taxation Special Tribunal.

3. A counter affidavit has been filed on behalf of the respondents to the effect that the Appellate Assistant Commissioner as well as the Tribunal rightly declined to condone the delay in filing the appeal as otherwise it will be clearly violative of the provisions of the Act. According to the respondent, the penalty under Section 12 (5)(iii) of the TNGST Act was levied on the ground that the petitioner had failed to disclose the turnover relating to the sales of food and drinks in their hotel in the return submitted before the authority though the figures were available in their Accounts. Further, it is contended that the Appellate Authority levied only the minimum penalty of 50% of the difference in tax payable on the turnover disclosed in the return and that was determined by the assessing authority. The order levying penalty cannot be said to be illegal.

4. Learned counsel appearing for the petitioner contended that the assessment