COMMISSIONER (CT) LTU KAKINADA & ORS. versus M/S. GLAXO SMITH KLINE CONSUMER HEALTH CARE LIMITED

Citation: [2020] 4 S.C.R. 602 · Decided: 06-05-2020 · Supreme Court of India · Bench: A.M. KHANWILKAR · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2020] 4 S.C.R.
ASSISTANT COMMISSIONER (CT) LTU KAKINADA & ORS.
v.
M/S. GLAXO SMITH KLINE CONSUMER
HEALTH CARE LIMITED
(Civil Appeal No. 2413 of 2020)
MAY 06, 2020
[A. M. KHANWILKAR AND DINESH MAHESHWARI, JJ.]
Constitution of India:
Art. 226 – Jurisdiction under – Scope of – Assessment under
Andhra Pradesh Value Added Tax Act, 2005 – Appeal against
assessment order filed beyond limitation period with application
for condonation of delay – Appeal dismissed as barred by limitation
– Writ Petition u/Art. 226 seeking to quash the assessment order –
High Court quashed the assessment order relegating the assessee
to Assessing Officer for reconsideration of the matter afresh –
Appeal to Supreme Court – Held: Where a right or liability is created
by a statute, giving a special remedy for enforcing it, remedy
provided by the statute only must be availed of – The wide jurisdiction
of High Court provided u/Art. 226, does not mean that it can pass
order in disregard of the substantive provisions of a statute – The
statutory appeal was filed beyond the total 60 days’ period specified
in s.31 of 2005 Act – The appellate authority is not empowered to
condone delay of the aggregate period of 60 days – Since the
statutory period specified for filing the appeal had expired and
appeal was filed without substantiating the ground for delay in filing
the appeal, no indulgence could be shown to the assessee – the writ
petition deserved to be rejected at the threshold.
Doctrine:
Doctrine of merger – Rejection of condonation of delay
application by appellate forum does not entail in merger of the
assessment order with that order.
Allowing the appeal, the Court
HELD: 1. It is evident from s. 31 of Andhra Pradesh Value
Added Tax Act, 2005 that the statutory appeal is required to be
[2020] 4 S.C.R. 602
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filed within 30 days from the date on which the order or proceeding
was served on the assessee. If the appeal is filed after expiry of
prescribed period, the appellate authority is empowered to
condone the delay in filing the appeal, only if it is filed within a
further period of not exceeding 30 days and sufficient cause for
not preferring the appeal within prescribed time is made out.
The appellate authority is not empowered to condone delay beyond
the aggregate period of 60 days from the date of order or service
of proceeding on the assessee, as the case may be. In the present
case, admittedly, the appeal was filed way beyond the total 60
days’ period specified in terms of Section 31 of the 2005 Act.
[Para 8][614-D-F]
2. The appellate authority vide order dated 25.10.2018,
considered the reasons offered by the respondent for the delay
in filing of the appeal and concluded that the same were not
substantiated with sufficient cause, and that the delay beyond the
period of 60 days from the date of service of the assessment
order on the respondent-assessee cannot be condoned.
[Para 8][617-B]
3. The High Court finally allowed the writ petition on the
ground that the statutory remedy had become ineffective for the
respondent (writ petitioner) due to expiry of 60 days from the
date of service of the assessment order. Inasmuch as, the
appellate authority had no jurisdiction to condone the delay after
expiry of 60 days, despite the reason mentioned by the
respondent of an extraordinary situation due to the act of
commission and omission of its employee who was in charge of
the tax matters, forcing the management to suspend him and
initiate disciplinary proceedings against him. Soon after becoming
aware about the assessment order, the respondent had filed the
appeal, but that was after expiry of 60 days’ period. The High
Court was also impressed by the contention pressed into service
by the respondent that it ought to be given one opportunity to
explain to the authority (Assistant Commissioner) about the
discrepancies between the value reported in the CST returns
and the amount indicated in Form “F” relating to the turnover.
The additional reason as can be discerned from the impugned
order is that the respondent had already deposited an additional
ASSTT. COMMR. (CT) LTU KAKINADA v. M/S. GLAXO SMITH
KLINE CONSUMER HEALTH CARE LTD.
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amount equivalent to 12.5% of the disputed tax amount in terms
of the earlier order. [Para 10][622-A-E]
4. Even though the High Court can entertain a writ petition
against any order or direction passed/act

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