Sagar Industries vs Commissioner of Commercial Taxes, Hyderabad

S. Parvatha Rao, J.—This special appeal is preferred by the appellant/dealer u/s 23 of the Andhra Pradesh General Sales Tax Act, 1957 ("the Act", for short) questioning the order of the Commissioner of Commercial Taxes, the respondent herein, in CCT''s ref. L.V.(2)/L.III(2)3174/85 dated April 18, 1989, made in exercise of his revisional powers under sub-section (1) of section 20 of the Act. The short but fatal attack is based on the bar of limitation. We find that the impugned order does not survive the attack.

The order sought to be revised by the Commissioner is of the Appellate Deputy Commissioner, Hyderabad-II Division, in Appeal No. C/178/82-83, dated March 25, 1983, setting aside the final assessment for the year 1981-82 under the Act to the extent of the disputed turnover of Rs. 9,31,740. According to the appellant, the said order of the Appellate Deputy Commissioner was received by it on the same day, i.e., March 25, 1983. The period within which the said order could be revised under sub-section (3) of section 20 of the Act read with sub-rule (1) of rule 44 of the Andhra Pradesh General Sales Tax Rules, 1957, is "four years from the date on which the order or proceeding was served on the dealer". Sub-section (6) of section 20 provides for exclusion of certain period in computing the period of four years, as follows :

"(6) Where any proceeding under this section has been deferred on account of any stay order granted by the High Court in any case, or by reason of the fact that an appeal or other proceeding is pending before the High Court or the Supreme Court involving a question of law having a direct bearing on the order or proceeding in question, the period during which the stay order was in force or such appeal or proceeding was pending shall be excluded in computing the period of four years specified in this section for the purposes of exercising the power under this section."

The order of the Commissioner impugned in the special appeal is dated April 18, 1989, much beyond four years from the date on which the Appellate Deputy Commissioner''s order was communicated to the appellant, i.e., March 25, 1983. The Commissioner sought to jump the bar of limitation by stating as follows in his order :

"The dealer requested for deferment of the proceedings till disposal of W.P. No. 11096 of 1984 filed by them in the A.P. High Court, Hyderabad. The honourable High Court of Andhra Pradesh disposed of the writ petition with a direction that the authorities may dispose of the revision proceedings."

That writ petition was preferred by the appellant herein seeking refund of Rs. 37,950 paid by it towards sales tax for the assessment year 1981-82 and it was dismissed by a Division Bench of this Court on February 12, 1988, with a direction that the Commissioner, i.e., the respondent herein, "may dispose of the same (the revision) within two months from today (i.e, February 12, 1988), if not already orders are passed". This Court also observed that the appellant herein might approach the Commissioner within one week (i.e, from February 12, 1988) if the matter was not already disposed of. But, the revision was not disposed of within two months from February 12, 1988 as directed by this Court. Therefore, the impugned order of the Commissioner''s cannot be shielded by the order of this Court in W.P. No. 11096 of 1984. The Commissioner cannot have the advantage even of sub-section (6) of section 20 because, as already pointed out earlier, that writ petition was preferred only for refund of certain amount paid by the appellant and it did not involve any question of law which had any direct bearing on the proceedings pending before the Commissioner u/s 20 of the Act. However, he did not state that the deferment was because the writ petition that was pending involved some question of law having a direct bearing on the proceedings before him - unless such a writ petition was pending, he could not seek, under sub-section (6) of section 20, the exclusion of the period during which that writ petition was pending. It is also not the case of the respondent that there was any order of stay of the proceedings before him pending that writ petition or that the said proceedings were deferred by him because of the pendency of the said writ petition. In fact the Commissioner indicated in the impugned order that the deferment was made at the instance of the appellant; he stated that "the dealer (appellant herein) requested for deferment". But such deferments are not attracted by sub-section (6) of section 20. The learned Government Pleader for Commercial Taxes is unable to show how the Commissioner can rely on the said provision if he had deferred the proceedings before him because the appellant made a request for deferment. The inescapable conclusion therefore is that the impugned order of the Commissioner is beyond the time bounds set by sub-section (3) read with sub-section (6) of section 20 of the Act.

In the result, we set aside the order of the Commissioner in CCT''s ref. L.V.(2)/L.III(2)3174/85 dated April 18, 1989. The special appeal is accordingly allowed with costs.

Appeal allowed.