IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
CWP 1577/2005
Date of Decision: 12.11.2009
The Supreme Industries Limited
..........Petitioner
Versus
State of Punjab and others
..........Respondents
CORAM: HON'BLE MR.JUSTICE M.M.KUMAR
HON'BLE MR.JUSTICE JASWANT SINGH.
Present: Mr.KL Goyal,Senior Advocate with
Mr.Sandeep Goyal,Advocate for the petitioner.
Mr.Piyush Kant Jain,Addl.AG Punjab for respondents.
1. To be referred to the Reporter or not ?
2. Whether the judgement should be reported in the Digest ?
M.M.KUMAR,J.
This order will dispose of CWP Nos. l577 and 1712 of 2005 as
common questions of fact and law are involved in these petitions. Facts are
being taken from CWP No.1577 of 2005.
The petitioner has approached this Court impugning the order
dated 11.12.2004 (Annexure P/12) passed by the Assessing Authority-cum-
Excise and Taxation Officer, canceling the exemption granted to the
petitioner from payment of sales tax vide order dated 16.4.2001 (Annexure
P/7). The aforesaid order was passed on the basis of eligibility certificate
issued on 13.3.2001 (Annexure P/5). It has been pointed out by the learned
State counsel that under Section 20 of the Punjab General Sales Tax
Act,1948, the order passed by the Assistant Excise and Taxation
CWP 1577/2005 2
Commissioner is appealable and without availing the remedy of appeal the
writ petition would not be maintainable.
Mr. Goyal, learned counsel for the petitioner states that he may
be permitted to withdraw the petitions with liberty to approach the
appellate authority. He further states that under Section 20, 60 days’ period
is provided for filing appeal and since the petition has been pending before
this Court, there is delay in approaching the appellate authority.
Accordingly, he states that the petitioner would file the appeal within a
period of two weeks and no objection with regard to delay in filing of
appeal be raised by the respondent-State.
It is appropriate to mention that the instant petition was filed
on 27.1.2005 which was admitted on 4.5.2005 when the following order
was passed which reveals that the learned Additional Advocate General,
Punjab was present. The said order reads as under:-
” Rule D.B.
List the matter for final disposal on 1.8.2005.
Having heard learned counsel for the parties
and bearing in mind the fact that the eligibility
certificate issued by the Industries Department was
clarified vide letter dated 18.11.2004 issued by the
General Manager, District Industries Centre, Patiala
and the said clarification has not been specifically
challenged by the Assistant Excise and Taxation
Commissioner, we are of the view that the petitioner
has made out a good case for grant of interim relief.
Accordingly, we stay the operation of
CWP 1577/2005 3
impugned order dated 11.12.2004 (Annexure P.12).
We clarify that in the event of the petitioner failing in
this writ petition, it shall be liable to pay the sales-tax
on the sales affected by it along with interest , as
may be directed by the Court.”
In view of the above, we relegate the petitioner to the remedy of filing
appeal. If the appeal is filed within a period of two weeks from the date of
receipt of a copy of this order, then the same shall not be dismissed on the
ground that there is delay because against the order dated 11.12.2004 the
writ petition was preferred on 27.1.2005 which itself was within a period of
60 days. It is well settled that approaching a forum different than the one
statutorily provided would not be hit by the delay and the cause of action
can still be agitated before the alternative forum. These principles are
incorporated in Section 14 of the Limitation Act,1963. We further make it
clear that the appellate authority shall decide the matter expeditiously
preferably within a period of three months. If an adverse order is passed by
the appellate authority the same shall not be given effect to for a period of
two weeks so as to enable the petitioner to avail the remedy of further
appeal to Tribunal.
The writ petitions stand disposed of in the aforesaid terms.
(M.M.Kumar)
Judge
12.11.2009 (Jaswant Singh)
joshi Judge