Kalipada Ghosh Vs. Additional Commissioner and anr.

Kalipada Ghosh vs Additional Commissioner and anr.

Disposition Writ application dismissed Court Orissa Decided Apr 26, 1989

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Citation: sooperkanoon.com/529670
Court: Orissa High Court
Judge: S.C. Mohapatra and ;L. Rath, JJ.
Decided On: Apr 26, 1989
Case Number: Original Jurisdiction Case No. 530 of 1982
Subject: Sales Tax
Disposition: Writ application dismissed

Case Summary

AI-generated summary - not the official court judgment text.

- MOTOR VEHICLES ACT, 1988 [C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal ...

Key legal issue: Sales Tax
Outcome / disposition: Writ application dismissed
Acts & sections: Orrisa Sales Tax Act, 1947 - Sections 9(3) and 9(6)

Parties & Advocates

Appellant / Petitioner

Kalipada Ghosh

Advocate R.B. Ray and ;D.K. Mohapatra, Advs.

Respondent

Additional Commissioner and anr.

Advocate A.B. Misra, Standing Counsel (C.T.)

Legal References

Acts: Orrisa Sales Tax Act, 1947 - Sections 9(3) and 9(6)
Reported In: [1990]76STC145(Orissa)

Excerpt

.....extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - ray, learned counsel for the petitioner, submitted that renewal was endorsed by the sales tax officer in the certificate of registration on 17th september, 1980, and..........sales tax officer invited this litigation by correcting the order. there can be no doubt that the sales tax officer did not apply his mind while correcting the order.6. the sales tax officer had jurisdiction to refuse renewal of registration under section 9(3-f) of the act, which reads as follows :'9. registration of dealers--(1) to (3-c) .....................(3-f) the registering authority shall ordinarily refuse renewal of registration of a dealer, who has not paid the dues payable up to the end of the quarter preceding the date of application, but it may, for reasons to be recorded in writing, allow renewal of his registration.explanation.--a dealer shall not be deemed to have made default in making payment of the dues as aforesaid if an application for stay of recovery of the dues has been duly filed by him and is pending on the date of application for renewal,'7. mr. ray submitted that 'the dues payable' envisages a prior assessment and demand and seeks assistance from the explanation to the aforesaid provision. we are not able to appreciate how the explanation would be attracted. it envisages an altogether separate situation. a registered dealer under the act is required to file the return quarterly and pay the admitted tax which is due to be paid. when no such return is filed, it can be inferred that in order to avoid 'the dues payable' the dealer did not file the return. if the dealer would have explained the circumstances for non-payment, the sales tax officer might have considered the genuineness of his difficulties. in this case, no explanation was offered for consideration of the sales tax officer. despite opportunity for the same, the petitioner failed to file the returns and pay the admitted tax. his conduct is contumacious. in the circumstances, the sales tax officer was justified in refusing renewal and the revisional authority was justified in affirming the same.8. in the result, writ application has no merit which is accordingly, dismissed. no.....

Full Judgment

S.C. Mohapatra, J.

1. A dealer under the Orissa Sales Tax Act, 1947 (hereinafter referred to as 'the Act'), whose certificate of registration has been refused, is the petitioner in this writ application under Article 226 of the Constitution of India.

2. On 27th February, 1981, the petitioner filed an application for renewal of registration certificate of the year 1981-82. The Sales Tax Officer found that the petitioner, a registered dealer has not filed returns for quarters ending June, September and December, 1980. He issued notice on 8th June, 1981 (annexure-1), for refusing renewal of registration for 1981-82 giving opportunity to the petitioner to file the returns on or before 12th June, 1981, paying the admitted tax to avoid such rejection. The petitioner not having filed the returns and not having paid the admitted tax, the Sales Tax Officer refused renewal of the certificate of registration for the year 1981-82 by order dated 10th July, 1981 (annexure-2). The petitioner assailed the same in revision which was dismissed on 30th January, 1982. The petitioner obtained certified copy of the order of the Sales Tax Officer (annexure-2) on 15th February, 1982. Shortly thereafter, he received a corrigendum (annexure-4) issued on 19th February, 1982, where the original order of refusal by the Sales Tax Officer indicating refusal to be under Section 9(3-f) was corrected and was stated to be one under Section 9(6)(c) of the Act.

3. Undisputedly, renewal of registration certificate of the petitioner for the year 1977-78 was refused by the Sales Tax Officer against which the petitioner filed a revision. By revision it directed the renewal and further directed that such renewal shall be effective till the end of the year, 1980-81.

4. Since there was no certificate of registration till 4th August, 1980, the petitioner could not have filed a return for the quarter ending June, 1980, within the due date. There was, however, no impediment for the petitioner to file returns for the quarters ending September, 1980 and December, 1980, within the due dates. Mr. R.B. Ray, learned counsel for the petitioner, submitted that renewal was endorsed by the Sales Tax Officer in the certificate of registration on 17th September, 1980, and the petitioner could not have filed the return for quarter ending September, 1980, on the due date. We are not able to appreciate the said contention. Return was to be filed after 30th September, 1980. When endorsement of renewal was made long prior to that date on 17th September, 1980, the return for that quarter could have been filed on the due date. In any case, the petitioner could have filed the return after receipt of notice (annexure-1) dated 8th June, 1981, when the Sales Tax Officer gave him opportunity to file the same on or before 12th June, 1981. Along with the returns, the petitioner could have also paid the admitted tax as could have been indicated in the returns. No explanation has been offered why the returns could not be filed in spite of getting opportunity for the same. An inference can safely be drawn that the petitioner intended to avoid payment of admitted tax for which he did not file the returns without any justification.

5. Mr. R.B. Ray, learned counsel for the petitioner, submitted that refusal of registration is under Section 9(6)(c) of the Act and non-filing of return and non-payment of admitted tax are not envisaged under the said provision to be grounds for refusal. Mr. Ray is correct that after the revisional order there was no scope for the Sales Tax Officer to correct the order of refusal (annexure-2). The Sales Tax Officer invited this litigation by correcting the order. There can be no doubt that the Sales Tax Officer did not apply his mind while correcting the order.

6. The Sales Tax Officer had jurisdiction to refuse renewal of registration under Section 9(3-f) of the Act, which reads as follows :

'9. Registration of dealers--

(1) to (3-c) .....................

(3-f) The registering authority shall ordinarily refuse renewal of registration of a dealer, who has not paid the dues payable up to the end of the quarter preceding the date of application, but it may, for reasons to be recorded in writing, allow renewal of his registration.

Explanation.--A dealer shall not be deemed to have made default in making payment of the dues as aforesaid if an application for stay of recovery of the dues has been duly filed by him and is pending on the date of application for renewal,'

7. Mr. Ray submitted that 'the dues payable' envisages a prior assessment and demand and seeks assistance from the explanation to the aforesaid provision. We are not able to appreciate how the explanation would be attracted. It envisages an altogether separate situation. A registered dealer under the Act is required to file the return quarterly and pay the admitted tax which is due to be paid. When no such return is filed, it can be inferred that in order to avoid 'the dues payable' the dealer did not file the return. If the dealer would have explained the circumstances for non-payment, the Sales Tax Officer might have considered the genuineness of his difficulties. In this case, no explanation was offered for consideration of the Sales Tax Officer. Despite opportunity for the same, the petitioner failed to file the returns and pay the admitted tax. His conduct is contumacious. In the circumstances, the Sales Tax Officer was justified in refusing renewal and the revisional authority was justified in affirming the same.

8. In the result, writ application has no merit which is accordingly, dismissed. No costs.

L. Rath, J.

9. I agree.

Same Court & Year Orissa · 1989 Same Parties Kalipada Ghosh vs Additional Commissioner and anr. Same Subject Sales Tax Same Judge S.C. Mohapatra and ;L. Rath, JJ. Acts & Sections Orrisa Sales Tax Act, 1947 - Sections 9(3) and 9(6)

Sales Tax