State of Tamil Nadu vs Tvl. Medi Herbs

The Miscellaneous Petition has been filed to condone the delay of 90 days in preferring the tax case revision as against the order of the Tribunal. This Court, vide order dated 22.03.2011, issued fresh notice on the respondent. Mr. R. Senniappan, learned counsel appears on behalf of the respondent, and vehemently opposed the petition stating that the appeal should be filed within 90 days from the date on which a copy of the order is served on the party and the Court may, within a further period of 90 days, admit a petition preferred after the expiration of the first mentioned period of 90 days. However, the present petition has been filed well beyond the further 90 days period and, therefore, in view of proviso to Section 38 of the Tamil Nadu General Sales Tax Act, the said petition cannot be entertained. On the above-said plea, the present petition is objected to by the learned counsel for the respondent. In support of his objection to entertain the petition, learned counsel for the respondent placed reliance upon the judgment of this Court in State of Tamil Nadu Vs. R.K. Herbal (P) Ltd. and Others, (2004) 136 STC 632 .

Heard the learned Special Government Pleader (Taxes) appearing for the petitioner and the learned counsel appearing for the respondent and perused the materials available on record as also the judgment relied on by the learned counsel for the respondent.

In R.K. Herbal''s case (supra), a Division Bench of this Court had occasion to consider the computation of limitation period for the purpose of filing the appeal. In the said decision, this Court has held that notices on behalf of the State of Tamil Nadu are received through its State representative. Such being the position, the service effected on the said representative is the service on the respondent. For better clarity, the relevant portion is extracted hereunder :-

"3. The regulations made by the Appellate Tribunal require that the party to be named in the appeal filed by an assessee is the State of Tamil Nadu. It is not required to be represented by any particular Deputy Commissioner. The person on whom notice could be served in such an appeal is the State representative appointed by the State Government to conduct matters before the Appellate Tribunal. The regulations also provide that the person competent to receive notices on behalf of the Government in matters before it is the State representative. The copies of the orders made by it are also to be communicated to that State representative.

The State which is the party to the appeal receives notices intended for it through the State representatives and the copies of the orders served by the Tribunal on such State representative is in effect service on the State of Tamil Nadu. For purposes of filing revisions under Section 38, the State is to be represented by the Deputy Commissioner. However, the regulations framed by the Appellate Tribunal which also provide for service of copy of the order on the Deputy Commissioner do not imply that the Deputy Commissioner is at liberty to take the date of service of the copy on him as the starting point for computation of limitation for the purpose of filing the revision under Section 38.

Time will begin to run from the date on which the copy is served on the State representative. It is for the State representative to co-ordinate with the concerned Deputy Commissioner and ensure that the revision is filed within the time allowed under Section 38.

This position in law was set out by the Tribunal in the impugned decision rendered by it on 3rd January, 2001, reported in State of Tamil Nadu v. R.K. Herbals Put. Ltd. (2001) 124 STC 695 . That judgment had also been accepted by the Commissioner, who had issued a circular directing all Deputy Commissioners to co-ordinate with the State representative and ensure that the revisions are filed within the time allowed by law, by computing the time for filing the revision as commencing from the date on which the copy of the order of the Tribunal is served on the State representative, before the Appellate Tribunal. The State also issued circulars in which it was stated that it has accepted that order and cautioned the Deputy Commissioners to co-ordinate with the State representatives in order to ensure that the revisions are filed within the time allowed by law. Having examined the matter, we do not find any error in the order of the Tribunal warranting our interference.

We must also refer to an argument made by the learned counsel for the Revenue. Section 36(8) requires that every order passed by the Tribunal shall be communicated in the manner prescribed to the appellant, the respondent, the authority from whose order the appeal was preferred, the Deputy Commissioner, if he is not such authority, and the Commissioner of Commercial Taxes. It was sought to be contended that the Deputy Commissioner being one of the authorities to whom the order is required to be sent and he being an officer empowered to file the revision under Section 38, is entitled to compute the period of limitation from the date on which he receives the copy of the order. This argument is not one which can be accepted. Sub-section (8) of Section 36 requires that the copy of the order to be sent to the respondent. The respondent in the appeal is the State of Tamil Nadu which receives the notices and orders concerning an appeal through its State representative. The service effected on the said representative is the service on the respondent. It is that same respondent-State which prefers a revision under Section 38 by acting through the Deputy Commissioner. The Deputy Commissioner, therefore, is merely an agent of the State and does not have any special status except that he is the officer who has been identified in the Act as the person who is competent to act on behalf of the State for the purpose of filing the revision."

Keeping the above-said proposition of law in mind, this Court has carefully considered the entire materials placed on record. Learned counsel appearing for the assessee/respondent submits that the order of the Tribunal has been served on the State Representative on 06.08.2001 and the revision having been filed on 06.02.2002, the same is barred by limitation. He has also filed a counter dated 09.03.2015 to the said effect. The said submission is not denied by the learned Special Government Pleader appearing for the petitioner. Applying the ratio of the above-said judgment, the relevant date of service on the respondent being 06.08.2001, the appellant having filed the present tax revision on 06.02.2002, it is clear that the appeal has been filed well beyond the further period of 90 days over and above the initial 90 days period as provided under proviso to Section 38 of the General Sales Tax Act, 1959. In such circumstances, the decision in R.K. Herbal''s case (supra) is squarely applicable to the facts of the present case.

For the reasons aforesaid, the objection raised by the respondent on the basis of the statutory provision has to be sustained. Accordingly, the Miscellaneous Petition and the Revision in the SR stage are dismissed. However, there shall be no order as to costs.