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Judgment
K. Raviraja Pandian, J.—This writ petition is filed by the State against the order of the Tamil Nadu Taxation Special Tribunal, dated 30th
January 2004 made in O.P. No. 138 of 2004, whereby the Special Tribunal set aside the order of the designated authority under the Tamil Nadu
Sales Tax (Settlement of Disputes) Act, 2002 dated 19.12.2003 non-suiting the petitioner for making an application under the provisions of
Section 5 of the said Act.
The facts of the case are as follows:
The first respondent herein was assessed to tax under the provisions of the Tamil Nadu General Sales Tax Act, 1959, (hereinafter referred to as
T.N.G.S.T. Act"") on a total and taxable turnover of Rs. 1,59,90,722/- and Rs. 54,46,425/- respectively by an order of assessment dated
8.10.1984 levying tax of Rs. 5,44,643/- and a penalty of Rs. 8,16,964/-. Aggrieved by the assessment order, the first respondent preferred an
appeal before the first appellate authority under the T.N.G.S.T. Act, 1959, the Appellate Assistant Commissioner (CT), Pollachi in Appeal
Petition No. 603 of 1995, S.C. No. 13/1985 and A.S.T. No. 15/85. The appeal was allowed by order dated 24.10.1985. The Joint
Commissioner (SMR) initiated a suo motu proceedings u/s 34 of the T.N.G.S.T. Act, 1959, set aside the order of the Appellate Assistant
Commissioner and restored the assessment order by his proceedings dated 2.5.1991. The first respondent''s application for review of the said
order was also rejected by the Joint Commissioner by order dated 29.11.1991. Challenging the said order, the petitioner filed writ petition in W.P.
No. 18096 of 1991 before this Court. The said writ petition was transferred to the Tamil Nadu Taxation Special Tribunal on its constitution and
taken up for orders in T.P. No. 1341 of 1997 and the same was disposed of on 10.11.1998 with a direction to the first respondent to avail the
statutory remedy available under the T.N.G.S.T. Act and for the purpose of limitation, the time spent during which the proceedings initiated in the
writ petition was directed to be excluded. The first respondent filed a Tax Case (Appeal) against the order of the Joint Commissioner (SMR)
before the Special Tribunal on 29.1.1999. The appeal papers were returned for compliance on certain defects on 23.6.2003. The first respondent
re-presented the same after complying with the defects on 25.6.2003.
In the mean time, the Tamil Nadu Sales Tax (Settlement of Disputes) Act, 2002, (hereinafter referred to as �the 2002 Act�), came to be
enacted for the purpose of expeditious settlement of disputes relating to arrears of tax, penalty or interest pertaining to sales tax. u/s 3 of the 2002
Act, the Deputy Commercial Tax Officer (CT), Coimbatore was appointed as a designated authority in respect of the area under consideration.
The first respondent filed an application u/s 5 of the 2002 Act to have the dispute settled. The said application came to be rejected by the
designated authority vide his order dated 19.12.2003 on the ground that the appeal filed by the first respondent before the Tamil Nadu Taxation
Special Tribunal was yet to be posted for admission, that only when the case was admitted and taken on record, it could be considered as an
appeal pending as on 28.2.2002.
Aggrieved by that order dated 19.12.2003, the first respondent filed a original petition in O.P. No. 138 of 2004 on the file of the second
respondent, which by its order dated 30.1.2004 allowed the original petition holding that the first respondent is entitled for a certificate of a
settlement. The correctness of the said order is canvassed in the present writ petition by the State.
Learned Government Pleader appearing for the State submitted that the Deputy Registrar (Judicial) of the Special Tribunal issued a certificate
dated 14.7.2003 in which it was made clear that the Tax Case (Appeal) relating to the assessment year 1983-84 was presented on 29.1.1999 and
re-presented on 25.6.2003 along with an application to dispense with the production of original order of the Joint Commissioner dated
29.11.1991. The appeal filed as early as 29.1.1999 and returned for rectification of the defects was abandoned by the first respondent and only in
order to avail the benefit conferred under the 2002 Act, the first respondent has chosen to re-present it on 25.6.2003. Such an appeal by no
stretch of imagination could be construed as pendency of appeal as required u/s 4 of the 2002 Act. As per Section 4 of the 2002 Act, the
pendency of an appeal or revision, which has been filed on or before 28.2.2002 is a condition precedent for making an application u/s 5 of the
2002 Act. Since the appeal filed by the first respondent could not be regarded as one filed on or before 28.2.2002 as on that date, it was not
admitted, the first respondent was not entitled to the benefit of the 2002 Act.
The learned Counsel appearing for the first respondent has argued for sustaining the order of the Special Tribunal.
We heard the argument of the learned Counsel on either side and perused the materials on record.
Section 4 of the Tamil Nadu Sales Tax (Settlement of Disputes) Act, 2002 reads as follows:
Eligibility for settlement.-
(1) Subject to the other provisions of this Act, an applicant may make an application for settlement of arrears of tax, penalty or interest in dispute in
respect of any period for which an assessment has been made under the relevant Act,--
(i) against which an appeal or revision has been filed on or before the 28th day of February, 2002 before any appellate authority or revisional
authority, as the case may be, and pending before such authority on or before the date of making an application u/s 5;
(ii) against which an order in appeal or revision is received by the dealer on or before the 15th day of February, 2002 and further appeal or
revision is filed and pending before making an application u/s 5.
Explanation. - For the purpose of this Act, appeal or revision shall not include writ or writ appeal.
(2) Notwithstanding anything contained in Sub-section (1), an applicant shall not be eligible to make an application for settlement of arrear of tax,
penalty or interest in dispute in respect of any period under the relevant Act for which the appeal or revision has been finally heard by the appellate
authority or the revisional authority, as the case may be.
A conjoint reading of Sub-clauses (1) and (2) of Section 4 makes it very clear that to be eligible for filing an application for settlement of arrears,
the appeal or revision must be filed and pending during crucial date i.e., on 28.2.2007 as per Sub-clause (1). Sub-clause (2) further provides that
where a revisional authority or an appellate authority has passed an order in the appeal or revision, and was received on the dealer on or before
15th February, 2002, and further appeal or revision is filed and pending before the authority, the dealer is entitled to file an application u/s 5 of the
2002 Act. The terminology employed in Sub-clauses (i) and (ii) of Section 4(1) is �filed on or before the 28th day of February 2002 and
pending� (Sub-clause (i)) and filed and pending before making an application u/s 5 (Sub-clause (ii)). The terminology �filed� has not been
defined in the Act.
The word �file/filed� has been defined in P. Ramanatha Aiyar''s �The Law Lexicon, Reprint Edition 1987� as follows:
...File. As a verb, it means to string, to fasten, as papers, on a line or wire for preservation; to arrange or insert in a bundle, as papers, indorsing the
title on each paper (Webster Dict.); to leave paper with an officer for action or preservation (Meridian National Bank v. Hoyst etc., Co. 60Am.St.
Rep. 504)....
Filed: Delivered to the proper officer and by him received to be kept on file. The derivation and meaning of the word, as defined in the dictionaries,
carries with it the idea of permanent preservation; becoming part of the permanent records of the public office where it is filed, and includes the
idea that the paper is to remain in its proper order on the file in the office. (Bergeron v. Hobbs 65, Am.St. Rep.85)
The word ""file"" has been defined Black''s Law Dictionary, Fifth Edition, 1979 as follows:
File. n. A record of the court. Milton v. United States C.C.A. La. 105 F.2d 253, 255. A paper is said to be filed when it is delivered to the proper
officer, and by him received to be kept on file as a matter of record and reference. But, in general, ""file"" or ""the files"", is used loosely to denote the
official custody of the court or the place in the offices of a court where the records and papers are kept. The ""file"" in a cause includes the original
complaint and all pleadings and papers belonging thereto....
File, v. To lay away and arrange in order, pleadings, motions, instruments and other papers for preservation and reference. To deposit in the
custody or among the records of a court. To deliver an instrument or other paper to the proper officer or official for the purpose of being kept on
file by him as a matter of record and reference in the paper place. It carries the idea of permanent preservation as a public record....
The word �file� has been defined in The Concise Oxford Dictionary, Tenth Eduction as follows:
file...place (a document) in a file, submit (a legal document, application or charge) to be officially placed on record....
The Webster''s New World Dictionary defines the word �file� as follows:
1 a) to arrange (papers, etc.) in order for future reference b) to put (a paper, etc.) in its proper place or order
2 to dispatch (a news story) to a newspaper, news agency, etc.
3 to register (an application, etc.)
4 to put (a legal document) on public record
5 to initiate (a divorce suit or other legal action)....
The word �pending� has been defined in P. Ramanatha Aiyar''s �The Law Lexicon, Reprint Edition 1987� as follows:
...''PENDING'' is defined to mean depending remaining undecided, not terminated.
An action is considered as pending from the time of its commencement of the proceedings.
A legal proceedings is �pending� as soon as commenced and until it is concluded, i.e. so long as the Court having original cognizance of it can
make an order on the matters in issue, or to be dealt with, therein....
A suit is pending until final judgment is rendered. See 3 I.C. 61 : 5 N.L.R. 88....
An action is pending the entire time from the beginning of the action, until final judgment has been pronounced and entered up, for until final
judgment there cannot be said to be a termination of the action and it is therefore still pending.
The word ""pending"" has been defined Black''s Law Dictionary, Fifth Edition, 1979 as follows:
Pending. Begun, but not yet completed; during; before the conclusion of; prior to the completion of; unsettled; undetermined; in process of
settlement or adjustment. Thus, an action or suit is �pending� from its inception until the rendition of final judgment.
Pending means awaiting an occurrence or conclusion of action, period of continuance or indeterminacy....
The word �pending� has been defined in The Concise Oxford Dictionary, Tenth Eduction as follows:
Pending... 1. awaiting decision or settlement, 2. about to happen.
The Webster''s New World Dictionary defines the word �Pending� as follows:
1 not decided, determined, or established a pending lawsuit, patent pending
2 about to happen; impending....
As per the above definitions, if the appeal is filed into the Tribunal on a particular day, the appeal is regarded to be filed on such date and it is
pending for consideration till it is finally determined. The appeal and revision referred to in Sub-clauses (i) and (ii) of the Section 4 of the 2002 Act
is not only an appeal before the Special Tribunal but before the statutory first appellate authority, the Appellate Assistant Commissioner and the
revisional authority "" the Deputy Commissioner or the Joint Commissioner, as the case may be. So far as the appeal and revision filed before the
Appellate Assistant Commissioner, Deputy Assistant Commissioner and Joint Commissioner are concerned, there is no procedure envisaged in the
regulations of the Tribunal for any admission. So far as the Special Tribunal is concerned, though the procedure was followed that the case has to
be posted for admission, having regard to the language employed in Sub-clause (i) and Sub-clause (ii) of Section 4(1) i.e., ""filed and pending
cannot be stretched to understand the same as ""admitted and pending"". It is also a statutory requirement that the appeal has to be filed within a
period prescribed for the purpose of limitation. For reckoning or calculating the limitation, the date of filing of the case papers in the office of the
concerned appellate or revisional authority alone has to be taken as date of filing and not the date of admission. Furthermore, Clause (ii) of Section
4(1) gives a further clue to the effect that mere filing of a revision is regarded as eligible for filing an application u/s 5. Because under the clause, if
the order passed by the appellate or revisional authority has been received by the dealer on or before 15th day of February, 2002, and further
appeal or revision is filed and pending, within the period prescribed under Clause (i) i.e., on 28.2.2002, that would entitle the dealer to file an
application u/s 5 of the 2002 Act. Admittedly, in this case, the Deputy Registrar (Judicial), Tamil Nadu Special Tribunal gave a certificate dated
14.7.2003 which reads as follows:
The petitioners Tvl. Dhamodharasamy Naidu and Brothers, 147, East Arokiasamy Road, Coimbatore have filed the Tax Case (Appeal) on
29.1.99 for the assessment year 1983-84. The tax case papers were returned to the petitioner on 23.6.03 for complying certain defects. After
complying the defects, the petitioners have re-presented the tax case (Appeal) papers on 25.6.2003. The said Tax case (Appeal) is pending
before this Special Tribunal as on date.
Thus, it is clear from the relevant period that the Tax Case (Appeal) has been filed before the Taxation Special Tribunal and the Special
Tribunal received on 29.1.1999 for further process and it has been processed and returned on 23.6.2003 for compliance of certain defects. After
complying with the defects, it has been re-presented on 25.6.2003. Thus, it shows that the papers have not been rejected by the Tribunal once and
for all. Further, with reference to the terminology employed in the Section ""file"" and ""pending"", it is impermissible to import any additional word in
the provision that in order to eligible to file an application u/s 5 of the 2002 Act, the appeal must be admitted as the word �admission� has not
been used in Section 4 of the 2002 Act. Even assuming in a case if the Special Tribunal did not find any case for admission on merits, that has to
be stated by passing an order for dismissal. That contingency neither visualised nor happened in this case. It is enough if an appeal or revision is
filed and pending for consideration.
For our above reasoning, we can take support of the decision of the Supreme Court in the case of Commissioner of Income Tax, Rajkot Vs.
Shatrusailya Digvijaysingh Jadeja, , wherein a scheme known as Kar Vivad Samadhan Scheme, 1998 was considered by the Supreme Court in
respect of a dispute, which is somewhat comparable to the facts of the present case and held thus:
The basic point which we are required to consider in this case is the meaning of the word ""pending"" in Section 5(i)(c) of the said Scheme.
The object of the Scheme was to make an offer by the Government to settle tax arrears locked in litigation at a substantial discount. It
provided that any tax arrears could be settled by declaring them and paying the prescribed amount of tax arrears, and it offered benefits and
immunities from penalty and prosecution. In several matters, the Government found that a large number of cases were pending at the recovery
stage and, therefore, the Government came out with the said Scheme under which it was able to unlock the frozen assets and recover the tax
arrears.
...
...
In the case of Dr. (Mrs.) Renuka Datla and Others Vs. Commissioner of Income Tax, Karnataka and Another, , this Court has held on
interpretation of Section 5(i)(c) that if the appeal or revision is pending on the date of the filing of the declaration u/s 88 of the Scheme, it is not for
the DA to hold that the appeal/revision was ''sham'', ''ineffective'' or ''infructuous'' as it has.
In the case of Raja Kulkarni v. State of Bombay AIR 1954 SC 73, this Court laid down that when a section contemplates pendency of an
appeal, what is required for its application is that an appeal should be pending and in such a case there is no need to introduce the qualification that
it should be valid or competent. Whether an appeal is valid or competent is a question entirely for the appellate court before whom the appeal is
filed to decide and this determination is possible only after the appeal is heard but there is nothing to prevent a party from filing an appeal which
may ultimately be found to be incompetent e.g. when it is held to be barred by limitation. From the mere fact that such an appeal is held to be
unmaintainable on any ground whatsoever, it does not follow that there was no appeal pending before the Court.
To the same effect is the law laid down by the judgment of this Court in the case of Tirupati Balaji Developers Pvt. Ltd. and Others Vs. State
of Bihar and Others, in which it has been held that an appeal does not cease to be an appeal though irregular and incompetent.
The three decisions referred above have been considered by the Supreme Court and re-affirmed the principle in its later decision in the case of
Swan Mills Ltd. Vs. Union of India (UOI) and Others, .
For the fore-going reasons and in the light of the law laid down by the Supreme Court, we are of the considered view that the Tribunal has
taken correct view and we do not find any illegality or irregularity in the order passed by the Tribunal so as to interfere with the same. The writ
petition is therefore dismissed. No costs. Consequently, the connected W.P.M.P. No. 1576 of 2005 is also dismissed.