Ramkrishna Forgings Ltd. Vs. State of Jharkhand and ors. - Court Judgment

Excerpt:
- 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 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]. order1. this writ petition has been filed by the petitioner assailing the order dated 7.9.2007 as contained in an-nexure-4 to this writ petition by which the application of the petitioner seeking deferment of the payment of sales tax for the period from 5.10.2001 to 4.10.2009 was rejected by the deputy commissioner of commercial taxes. jamshedpur on the ground that the division bench of the high court of jharkhand had been pleased to strike down the notification regarding deferment scheme and s.l.p. was filed by the state of jharkhand in the hon'ble supreme court, which was pending for consideration. hence, the deputy commis sinner as per the existing situation was pleased to reject the application of the petitioner as by that time the hon'ble supreme court had not interfered with unorder passed by the high court. it is stated that the hon'ble supreme court, in fact, had already passed an order on 11.9.2007 indicating that the assessee will pay the amount towards arrears of sales tax with interest that may be stipulated at the time of final hearing of the appeal in case the state succeeded in the appeals.2. it has been stated that the petitioner was not aware that the said order was already existing on the date when his application was rejected by the deputy commissioner on 7.9.2007, thereafter the petitioner became aware of the order dated 11.9.2007 by which the striking down the deferment scheme was in fact stayed by the hon'ble supreme court as the assessee was allowed deferment of the payment with interest in the event of state succeeding in appeal.3. in view of the order of the hon'ble supreme court, it has been submitted that the deferment of the scheme has practically been granted to the assessee and by way of interim order passed by the hon'ble supreme court on 11.9.2007 as referred to hereinbefore, the benefit of deferment ought to be granted to the petitioner also.4. since the deferment scheme has been given effect to by the interim order of the hon'ble supreme court on 11.9.2007 in batch of s.l.p. (civil) no. 7584/2007 (state of jharkhand and ors. v. tata steel ltd. and ors.), liberty is granted to the petitioner to file an application before the deputy commissioner bringing to his notice the order of the hon'ble supreme court for passing appropriate order in the light of the direction issued in the interim order dated 11.9.2007.5. the deputy commissioner is expected to pass necessary order expeditiously in view of the direction of the hon'ble supreme court.6. this writ petition is, accordingly, disposed of.

Judgment:
ORDER

1. This writ petition has been filed by the petitioner assailing the order dated 7.9.2007 as contained in An-nexure-4 to this writ petition by which the application of the petitioner seeking deferment of the payment of sales tax for the period from 5.10.2001 to 4.10.2009 was rejected by the Deputy Commissioner of Commercial Taxes. Jamshedpur on the ground that the Division Bench of the High Court of Jharkhand had been pleased to strike down the notification regarding deferment scheme and S.L.P. was filed by the State of Jharkhand in the Hon'ble Supreme Court, which was pending for consideration. Hence, the Deputy Commis sinner as per the existing situation was pleased to reject the application of the petitioner as by that time the Hon'ble Supreme Court had not interfered with Unorder passed by the High Court. It is stated that the Hon'ble Supreme Court, in fact, had already passed an order on 11.9.2007 indicating that the assessee will pay the amount towards arrears of sales tax with interest that may be stipulated at the time of final hearing of the appeal in case the State succeeded in the appeals.

2. It has been stated that the petitioner was not aware that the said order was already existing on the date when his application was rejected by the Deputy Commissioner on 7.9.2007, Thereafter the petitioner became aware of the order dated 11.9.2007 by which the striking down the deferment scheme was in fact stayed by the Hon'ble Supreme Court as the assessee was allowed deferment of the payment with interest in the event of State succeeding in appeal.

3. In view of the order of the Hon'ble Supreme Court, it has been submitted that the deferment of the scheme has practically been granted to the assessee and by way of interim order passed by the Hon'ble Supreme Court on 11.9.2007 as referred to hereinbefore, the benefit of deferment ought to be granted to the petitioner also.

4. Since the deferment scheme has been given effect to by the interim order of the Hon'ble Supreme Court on 11.9.2007 in batch of S.L.P. (Civil) No. 7584/2007 (State of Jharkhand and Ors. v. Tata Steel Ltd. and Ors.), liberty is granted to the petitioner to file an application before the Deputy Commissioner bringing to his notice the order of the Hon'ble Supreme Court for passing appropriate order in the light of the direction Issued in the interim order dated 11.9.2007.

5. The Deputy Commissioner is expected to pass necessary order expeditiously in view of the direction of the Hon'ble Supreme Court.

6. This writ petition is, accordingly, disposed of.