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2005 DIGILAW 399 (KAR)

SRI GOPALAKRISHNA SHETTY v. STATE OF KARNATAKA.

2005-06-23

H.L.DATTU, H.N.NAGAMOHAN DAS

body2005
JUDGMENT H. L. DATTU, J. - This sales tax revision petition is filed against the order passed by the Karnataka Appellate Tribunal in Appeal No. 1219 of 2004 dated October 21, 2004 by the petitioner, being aggrieved by the same. A brief reference to the facts may be necessary to resolve the legal issues raised by the petitioner in this revision proceedings. They are : The petitioner is a transporter and owner of vehicle bearing registration No. KA-19 A-3435. On several occasions, in the months of May and June, 2002, he had transported superior kerosene oil and naptha from Mangalore Port or stock points at Mangalore to a place outside the State - Pondicherry/Chennai, consigned by companies like M/s. Pas Petro Products, M/s. Vivek Petro Chemicals Pvt. Ltd., who are registered dealers under the provisions of the Karnataka Sales Tax Act, 1957 ("the Act", for short), having their branch office at Mangalore and head office at Pondicherry/Chennai, etc., on stock transfer basis. According to the petitioner, the goods in question were imported by the consignors into the country from abroad and formed part of their stock at Mangalore after clearance from the Mangalore Port. To reach the consignors head office, the transport vehicle has to pass through the State of Karnataka. If the vehicle has to move from Mangalore, in the normal course, it has to pass through check-post at Kannur, Mangalore, which is the entry or inward check-post in Karnataka and either the sales tax check-post at Hosur Road, Attibele or N. Vaddarahalli check-post, Mulbagal Taluk, Kolar District, which are known as exit or outward check-posts. The driver-in-charge of the aforesaid vehicle, in order to obtain a transit pass, to pass through the State while carrying imported naphtha and kerosene oil, as required under section 28AA of the Act, had submitted an application in triplicate in form 39AA to the Officer-in-charge of the check-post at Kannur, Mangalore, which is the entry check-post in Karnataka. The check-post officer, after making necessary inquiries had issued a pass on the duplicate and triplicate copies of the application to the driver-in-charge of the vehicle and had retained the original application with him and in the transit pass so issued, had specifically directed the vehicle to cross the check-post at Hosur Road (outward), Attibele, within the time and date specified. In the instant case, it so transpired that the driver-in-charge of the vehicle appears to have created documents as if the duplicate transit pass was surrendered at N. Vaddarahalli check-post, Mulbagal Taluk, Kolar District, and the duplicate copy of the transit pass was received by the Officer, who had issued the transit pass in an envelope affixed with postal stamps used by the general public, instead of Government service postage stamp. This was the cause to suspect the genuineness of the movement of the goods vehicle out of the State by crossing at N. Vaddarahalli check-post at Mulbagal Taluk. The Officer-in-charge of the check-post at Kannur after making necessary inquiries and letter correspondence with his counter-parts at Hosur check-post and at N. Vaddarahalli check-post and being convinced that the goods vehicle for which transit pass had been issued had not crossed the State borders, initiated proceedings under sections 28AA(4) and (5) of the Act by issuing a show cause notice to the owner of the vehicle, to show cause why he should not be assessed to tax as contemplated under section 28AA(4) of the Act and the penalty under section 28AA(5) of the Act should not be levied and collected as prescribed under section 28AA(6) of the Act, for contravention of the provisions of section 28AA(2) of the Act. In the notice so issued, the check-post officer had alleged : "3. On the close scrutiny of the questioned transit passes received by post affixed with the stamps used by the public on the envelope, it was found clear that the seal and officer's signature of N. Vaddarahalli check-post mentioned in the said transit passes were forged with the ulterior motive of evading the tax to be paid to the State, the vehicle owners/drivers in collusion with the goods owners have created the duplicate seal and forged the signatures, created false (forged) documents of surrendering the said transit passes at N. Vaddarahalli check-post, sent by post to this check-post, created duplicate documents to show that the goods mentioned in the transit passes have been transferred to inter-State vehicle owners/drivers with fraudulent action committed offences. 4. The owner of vehicles/drivers have failed to surrender the transit passes at the Attibele check-post within the stipulated date as prescribed under section 28AA(2) of the KST Act and rule 23F(3) of KST Rules. 4. The owner of vehicles/drivers have failed to surrender the transit passes at the Attibele check-post within the stipulated date as prescribed under section 28AA(2) of the KST Act and rule 23F(3) of KST Rules. But, it is found that fictitious documents were created for having surrendered at the N. Vaddarahalli check-post and sent to this check-post. The goods transported in the transit passes were not transported to the place Pondicherry mentioned in the document but were unloaded in the Karnataka State and thereafter were sold unauthorisedly defrauding (evading) the taxes to be paid to the State. This has been proved and hence, the goods sold in the State have to be brought to assessment and assessed to tax for the goods involved in the transit passes as per section 28AA(4) of the KST Act, 1957." After receipt of the show cause notice, the owner of the goods vehicle had raised all possible objections to the proposal made in the show cause notice. The check-post officer after affording a reasonable opportunity of hearing to the owner of the vehicle and after considering several objections raised in the reply to the show cause notice had passed an order levying tax under section 28AA(4) of the Act and penalty as provided under section 28AA(5) of the Act for contravention of the provisions of section 28AA(2) of the Act. The order passed by the check-post officer under section 28AA(4) of the Act reads as under : "Order under section 28AA(4) of the KST Act, 1957. On perusal of the actual facts and circumstances explained in the proposition, the driver/owner of the goods vehicle has failed to transport the goods to the place noted in the questioned transport permit, the goods are unloaded within the State and thereafter, unauthorisedly sold them locally and it is decided to levy tax under section 28AA(4) as proposed in the proposition notice and assessed as under : -------------------------------------------------------------------------- Sl. Transport permit No. Goods Quantity Value Rate Tax No. and date of tax levied -------------------------------------------------------------------------- 1. 0240301/15-5-2002 Naphtha 8.150 MT 1,40,180 12% 16,822 -------------------------------------------------------------------------- 2. 0240844/31-5-2002 Naphtha 8.070 MT 1,33,155 12% 15,979 -------------------------------------------------------------------------- 3. 0185013/15-6-2002 Naphtha 8.090 MT 1,39,148 12% 16,698 -------------------------------------------------------------------------- 4. 0185324/27-6-2002 Naphtha 8.100 MT 1,39,320 12% 16,718 -------------------------------------------------------------------------- Total tax determined : Rs. 66,217 -------------------------------------------------------------------------- The above said amount of Rs. 0240301/15-5-2002 Naphtha 8.150 MT 1,40,180 12% 16,822 -------------------------------------------------------------------------- 2. 0240844/31-5-2002 Naphtha 8.070 MT 1,33,155 12% 15,979 -------------------------------------------------------------------------- 3. 0185013/15-6-2002 Naphtha 8.090 MT 1,39,148 12% 16,698 -------------------------------------------------------------------------- 4. 0185324/27-6-2002 Naphtha 8.100 MT 1,39,320 12% 16,718 -------------------------------------------------------------------------- Total tax determined : Rs. 66,217 -------------------------------------------------------------------------- The above said amount of Rs. 66,217 shall be paid within 21 days of receipt of demand notice and demand notice shall be issued accordingly." The order passed by the check-post officer under section 28AA(5) of the Act reads as under : "Order under section 28AA(5) of the KST Act, 1957 : On perusal of the actual facts and circumstances explained in the proposition, the owner/driver of the vehicle has failed to transport the goods to the place noted in the questioned transport permit, the goods in question are found to be sold within the State of Karnataka. Apart from that, fictitious documents were created to show that the goods were transported outside the State, i.e., by creating duplicate seal of the check-post and by forging the signature of the officer, thereby it is proved that huge tax due to the Government is evaded. It is a preplanned tax evasion case and it is a fit and deserving case to levy penalty. The driver of the vehicle has contravened the directions in section 28AA(2) of the Act. Keeping in view the facts of the case and as the tax has already been levied under section 28AA(4), the penalty under section 28AA(5) is levied equal to the tax and ordered accordingly : ---------------------------------------------------------------------------- Sl. Transport permit No. Goods Quantity Value Tax Penalty No. and date levied ---------------------------------------------------------------------------- 1. 0240301/15-5-2002 Naphtha 8.150 MT 1,40,180 16,822 16,822 ---------------------------------------------------------------------------- 2. 0240844/31-5-2002 Naphtha 8.070 MT 1,33,155 15,979 15,979 ---------------------------------------------------------------------------- 3. 0185013/15-6-2002 Naphtha 8.090 MT 1,39,148 16,698 16,698 ---------------------------------------------------------------------------- 4. 0185324/31-6-2002 Naphtha 8.100 MT 1,39,320 16,718 16,718 ---------------------------------------------------------------------------- Total penalty determined : Rs. 66,217 ---------------------------------------------------------------------------- It is ordered that the above said penalty of Rs. 0240301/15-5-2002 Naphtha 8.150 MT 1,40,180 16,822 16,822 ---------------------------------------------------------------------------- 2. 0240844/31-5-2002 Naphtha 8.070 MT 1,33,155 15,979 15,979 ---------------------------------------------------------------------------- 3. 0185013/15-6-2002 Naphtha 8.090 MT 1,39,148 16,698 16,698 ---------------------------------------------------------------------------- 4. 0185324/31-6-2002 Naphtha 8.100 MT 1,39,320 16,718 16,718 ---------------------------------------------------------------------------- Total penalty determined : Rs. 66,217 ---------------------------------------------------------------------------- It is ordered that the above said penalty of Rs. 66,217 shall be paid within 21 days failing which recovery action will be taken as per law." The owner of the vehicle aggrieved by the aforesaid orders of the check-post officer, had carried the matter before the first appellate authority as provided under section 20 of the Act, who by his order dated July 22, 2003, after allowing the appeal has remanded the matter to the check-post officer for a fresh disposal in accordance with law and in the light of the observations made by him in the course of his order. The State Representative, at the instance of the Joint Commissioner of Commercial Taxes, had preferred appeals before the Karnataka Appellate Tribunal, inter alia, questioning the correctness or otherwise of the orders passed by the first appellate authority, which according to him was prejudicial to the interest of the Revenue. The Tribunal which is the last fact-finding authority under the Act, after a very lengthy discussion of the modus operandi adopted by the owner of the vehicle, has come to the conclusion that the owner of the vehicle has contravened the provisions of section 28AA(2) of the Act and therefore, the check-post officer at Kannur was justified in passing an order under section 28AA(4) of the Act in levying tax under the Act and also in levying penalty under section 28AA(5) of the Act and accordingly, has set aside the common order passed by the first appellate authority. Before the Tribunal, the petitioner had also filed cross-objections, firstly, justifying the findings and the conclusions reached by the first appellate authority, and secondly, objecting to the orders passed in remanding the matter to the check-post officer for a fresh disposal in accordance with law and in the light of his findings and conclusions. At this stage, we do not intend to refer to the issues raised by the petitioner before the Tribunal, since the very issues are raised and canvassed by the learned counsel for the petitioner in this revision petition filed before us. At this stage, we do not intend to refer to the issues raised by the petitioner before the Tribunal, since the very issues are raised and canvassed by the learned counsel for the petitioner in this revision petition filed before us. A revision petition can be filed by an aggrieved person before this court under section 23 of the Act against the orders passed by the Appellate Tribunal, on the ground, that, the Tribunal has either failed to decide or decided erroneously any question of law. This settled principle of law, in our view, does not require elaboration. In this revision petition proceeding, the petitioner has raised the following questions of law for our consideration and decision and they are : "(i) Whether, in the facts and circumstances of the case, the Karnataka Appellate Tribunal is justified in holding that the State Representative has got authority to file the appeal before it inspite of the fact that he had not been authorised by the State Government to file the appeal as required under section 22(1) of the Karnataka Sales Tax Act, 1957 as per which only an officer empowered by the State Government in that behalf can file appeal before the Tribunal ? (ii) In the facts and circumstances of the case, whether the Karnataka Appellate Tribunal is right in holding that the words, "State" and "Government" used in section 22(1) of the Karnataka Sales Tax Act, 1957 have a broader meaning and include all officers and authorities under the said Act and therefore, the Commercial Tax Officer, Check-post, Kannur and the State Representative have got authority to file appeals before the Karnataka Appellate Tribunal under section 22(1) of the said Act ? (iii) Whether, in the facts and circumstances of the case, the Karnataka Appellate Tribunal is right in holding that the check-post officer is justified in imposing tax and penalty on the petitioner by presuming that the goods carried in the petitioner's vehicle are sold inside the State of Karnataka even though the assessing authorities of the consignors of the goods in their assessment orders had levied tax on the consignors of the very same goods covered by the transit passes in question by holding that they have sold the goods inside the State and the first appellate authority of one of the consignors has held that the consignor has transported the goods out of the State of Karnataka ? (iv) Whether, in the facts and circumstances of the case, the Karnataka Appellate Tribunal has committed an error in not disposing of the memorandum of cross-objections filed by the petitioner even though as per section 22(2A) of the Karnataka Sales Tax Act, 1957, such memorandum shall be disposed of by the Tribunal as if it were an appeal presented before it ? (v) Whether, in the facts and circumstances of the case, the Karnataka Appellate Tribunal has committed an error in not dismissing the appeal filed by the State of Karnataka by holding that the provisions of section 28AA(4) and 28AA(5) of the Karnataka Sales Tax Act, 1957 are not applicable to the facts of the present case and therefore the entire proceedings initiated against the petitioner which culminated in the order of the first appellate authority are void ab initio ? (vi) Whether, in the facts and circumstances of the case, the Karnataka Appellate Tribunal has committed an error in not holding that the proceedings under section 28AA of the Karnataka Sales Tax Act, 1957 ought not to have been initiated against the petitioner in view of Explanation to section 28AA of the said Act as per which the hirer of the vehicle shall be deemed to be the owner for the purpose of the said section ? (vii) Whether, in the facts and circumstances of the case, the Karnataka Appellate Tribunal has committed an error in not giving any finding on the ground urged before it that the check-post officer has violated the principles of natural justice in not summoning the books of account of the consignor of the goods and the concerned officials of the consignors for cross-examination to enable the petitioner to rebut the presumption contemplated under section 28AA(4) of the KST Act as per which the owner of the goods vehicle is presumed to have sold the goods inside the State if he fails to surrender the transit pass at the exit check-post before leaving the State ?" The first two questions of law are interrelated and therefore, they are taken together for consideration. These questions were also raised before the Tribunal by the petitioner. The Tribunal while answering this specific legal issue, after referring to the provisions of section 22 and section 3(2) of the Act, has observed, that, the provisions are wide enough to permit filing of appeal either by the State Representative himself or when any other officer requests him to do so. According to them, this has been the understanding in all these fifty (50) years of sales tax law and therefore, they do not find any ample reason to hold any other view. They have further observed, that both the provisions should be read, not only harmoniously, but also in such a way that they become functional. According to them, the words "State" and "Government" used do have a broader meaning so as to include all officers and authorities, who work under the concerned statute; the right to defend an order is akin to "lis" accrued by the aggrieved officer (the C.P.O. in this case); for all officers and the Government, the SR is the presenting hand before this court; the authorities under the Act are not lesser than the alleged violators of law before adjudicating courts. The officers can defend their orders. If the argument that the Government Secretariat alone is competent to decide whether to go in an appeal is accepted, the conclusion would be the one which will say that the CPO, cannot defend his own actions. The Tribunal concludes by referring to the observations made by the Supreme Court in the case of Collector, Land Acquisition v. Mst. If the argument that the Government Secretariat alone is competent to decide whether to go in an appeal is accepted, the conclusion would be the one which will say that the CPO, cannot defend his own actions. The Tribunal concludes by referring to the observations made by the Supreme Court in the case of Collector, Land Acquisition v. Mst. Katiji [1987] 66 STC 228; AIR 1987 SC 1353 , that "the law courts are more honoured not because they become stringent to technicalities (which are also debatable) but they render substantial justice and treat both the contending parties equally". We do not subscribe to the findings and the conclusion reached by the Tribunal on this primary legal issue raised and canvassed before the Tribunal by the learned counsel for the petitioner. In fact, the State also does not defend the over enthusiastic approach of the State Representative. Therefore, before us they have taken appropriate steps to overcome this legal hurdle, to which we will make reference a little later. To resolve this issue, the provisions of the Act, which require to be noticed, are, section 3(2) and section 22 of the Act, and the rules framed thereunder : Chapter II of the Act provides for "Authorities and Appellate Tribunal". This section authorises the State Government to appoint Commissioner and other officers for the purpose of performing the functions conferred on them by or under this Act or by or under any other law for the time being in force. Sub-section (1A) of section 3 of the Act gives power to Commissioner of Commercial Taxes to empower an officer not below the rank of Assistant Commissioner of Commercial Taxes, or an advocate or a chartered accountant or a sales tax practitioner enrolled in the prescribed manner, to perform the functions of the State Representative. Sub-section (2) of section 3 of the Act, authorises the State Representative to perform certain functions in proceedings before the Appellate Tribunal. He is authorised, to prepare and sign applications, appeals and other documents; to appear, represent, act and plead; to receive notices and other processes; and to do all other acts connected with such proceedings on behalf of the State Government. These functions can also be performed by any other officer appointed under this Act by the Commissioner in exercise of his powers under sub-section (1A) of section 3 of the Act. These functions can also be performed by any other officer appointed under this Act by the Commissioner in exercise of his powers under sub-section (1A) of section 3 of the Act. Section 22 of the Act provides for filing of an appeal before the Appellate Tribunal. Section 22 of the Act is extracted by omitting what is not necessary for the purpose of this case. "Section 22. Appeal to the Appellate Tribunal. - Any Officer empowered by the State Government in this behalf or any other person objecting to an order passed under section 12D or an order passed by the Deputy Commissioner or the Joint Commissioner under section 20 or section 21 may appeal to the Appellate Tribunal within a period of sixty days from the date on which the order was communicated to him." An appeal is an application by a party to an appellate court asking it to set aside or revise a decision of a subordinate court in an "appeal" within the ordinary acceptation of the term. It is now well-settled that there is no inherent or constitutional right to file an appeal and that right of appeal is a creature of the statute and the same has to be expressly conferred to enable its exercise. It is open to the Legislature to impose an accompanying liability upon a party on whom a legal right is conferred or prescribe a condition for exercise of right, if a party seeks to avail such remedy. Alternatively, it can be said that the right of appeal is a statutory right and it can be circumscribed by the conditions of grant. If the statute gives a right to appeal upon certain conditions, it is upon fulfilment of those conditions that the right becomes vested in and exercisable. If the statute specifically provides that an appeal could be filed only by a person authorised by the State Government in that behalf or if the statute limits the time within which an appeal can be filed, it has to be filed only by the person empowered by the State Government and it has to be filed within the period so prescribed. Any power for the State Representative to file such an appeal without such specific empowerment or any power of condonation of delay in doing so has to be traced to the provisions of the statute under consideration. Any power for the State Representative to file such an appeal without such specific empowerment or any power of condonation of delay in doing so has to be traced to the provisions of the statute under consideration. The Sales Tax Act is a self-contained code exhaustive of the matters dealt therein. It provides for a complete and self-contained machinery for imposing and collecting tax, and for obtaining relief against improper orders both for the assessee as well as to the department by way of appeals, revisions, etc. A right of appeal is not merely a matter of procedure. It is a matter of substantive right. This right of appeal from the decision of an appellate authority or the inferior Tribunal to a superior Tribunal becomes vested in a party when proceedings are first initiated and before a decision is given by an inferior court. It is well-established that the statutes pertaining to right of appeal should be given liberal construction in favour of the right, since they are remedial and the right should not be restricted or denied unless such a construction is unavoidable and in case of doubt, the same should be resolved in favour of the right of appeal (Statutory Construction by Crawford 1940 Edition). In the case of Mela Ram and Sons v. Commissioner of Income-tax, Punjab [1956] 29 ITR 607 (SC), Caltex Oil Refining (India) Ltd. v. Commissioner of Income-tax [1993] 202 ITR 375 (Bom) and Commissioner of Income-tax v. Ashoka Engineering Co. [1992] 194 ITR 645 (SC), the courts have observed that the judges should be slow to adopt a construction which deprives parries of valuable rights of appeal. The substantive law defines the remedy and the right, while law of procedure defines the modes and conditions of application of the one to the other. Likewise, the distinction between the right to remedy and mere procedure to be followed in prosecuting that remedy must also be kept in view. The law of procedure deals with the process by which a remedy for the enforcement of a right is prosecuted. Therefore, the forum of appeal as also the limitation are matters of procedural law and that no person has a vested right in the course of procedure. He has only the right of appeal in the manner prescribed for the time being in force. Therefore, the forum of appeal as also the limitation are matters of procedural law and that no person has a vested right in the course of procedure. He has only the right of appeal in the manner prescribed for the time being in force. The Act provides for filing of an appeal to the Appellate Tribunal both by the Revenue as well as by an assessee under the Act, if they are aggrieved by an order passed by the assessing authority under section 12D of the Act or an order passed by the Deputy Commissioner or Joint Commissioner under sections 20 and 21 of the Act, respectively, within a period of sixty (60) days from the date on which the order is communicated to them. When it comes to filing of an appeal to the Appellate Tribunal by the Revenue/department, the statute provides that it can be preferred by an officer empowered by the State Government in this behalf. The power of taxation is essentially legislative power, for the reason, article 265 of the Constitution states that "no tax shall be levied or collected except by authority of law". The tax law has essential three features. Firstly, the provisions declaring liability to pay the tax, i.e., charging provisions; secondly, provisions for assessment of tax; and thirdly, provisions for collecting or recovering the tax including provisions for checking evasion of tax. Regarding the charging section, the declaration by a Legislature of the liability to pay tax is the essential feature of a taxing statute and cannot be delegated. The other details regarding the procedure for assessment of tax, collection and recovery could be delegated by the Legislature to the State Government or to an authority, who normally is the person who is primarily responsible for effectively implementing the will of the Legislature. The Legislature has delegated the power to the State Government under section 22 of the Act to empower an officer to file an appeal to the Appellate Tribunal under certain circumstances. The dictionary meaning of the expression "empowered" is to invest legally or formally with power. The Legislature has delegated the power to the State Government under section 22 of the Act to empower an officer to file an appeal to the Appellate Tribunal under certain circumstances. The dictionary meaning of the expression "empowered" is to invest legally or formally with power. In the context this expression is used, if carefully analysed and understood, it means that the State Government should legally and formally invest power in an officer to file an appeal to the Appellate Tribunal, if the Revenue is aggrieved by any one of the orders mentioned in the section itself and that too within a period of sixty (60) days from the date on which the order is communicated. The Tribunal is vested with the power to admit an appeal preferred after the period of sixty (60) days referred in sub-section, if it is satisfied that the appellant had sufficient cause for not preferring the appeal within that period. The Legislature has yet again restricted the power of the Tribunal to admit an appeal preferred after sixty (60) days, if sufficient cause is shown, for not preferring the appeal within the time prescribed only for a further period of one hundred and eighty (180) days. Since the right of appeal is a creature of the statute, it has to be exercised strictly in conformity with the statutory provisions which creates it. The power given to the Revenue to prefer an appeal to the Appellate Tribunal can be traced only to section 22 of the Act. If the statute limits the power of filing an appeal to an officer empowered by the State Government, this power cannot be exercised by any other officer. However, the Appellate Tribunal relying on section 3(2) of the Act, has negatived the issue canvassed by the learned counsel for the petitioner solely on the ground, that the said provision is wide enough to permit the State Representative to prefer an appeal to the Appellate Tribunal either on his own or when a request is made by any other officer. Further, relying on the language used in section 22 of the Act, the Tribunal observes, that "the words 'State' and 'Government' used in section 22 of the Act have a broader meaning to include all officers and authorities, who work under the concerned statute and for all officers and the Government, the State Representative is the presenting hand before the Tribunal". The fallacy in the conclusion reached by the Tribunal is that, it is equating a State Representative with an officer empowered by the State Government to prefer an appeal against the orders passed by the authorities under the Act. There is no basis for this conclusion of the Tribunal and, in fact, it runs counter and contrary to the statutory provision. A right of appeal is a remedy for the enforcement of a right and this remedy is equally a substantive right, though remedial in nature. This right which is a superior right can be exercised only in accordance with the procedure prescribed by the statute and not by resorting to any other method and yet again, on an assumed statutory power. Under section 3(2) of the Act, a State Representative in a proceeding or proceedings before the Appellate Tribunal is competent to prepare and file a memorandum of appeal and also prosecute the same. In section 3(2) of the Act, the Legislature in its wisdom has used the expression "the State Representative shall be competent" to prepare memorandum of appeal and nowhere in the said sub-section, the Legislature has used the expression that the State Representative is empowered to prefer an appeal to the Appellate Tribunal. In the absence of such empowerment of power to prefer an appeal to the Appellate Tribunal, the State Representative either on his own or on a request made by an officer under the Act, cannot prefer an appeal before the Appellate Tribunal, even if the State Representative is of the view that an order passed by the assessing authority or the first appellate authority requires a correction/modification/annulment by a superior forum. That equally applies to an officer under the Act. That equally applies to an officer under the Act. If an assessing officer or the check-post officer entertains a doubt about the correctness of the orders passed by the first appellate authority against his order, he necessarily has to approach the State Government to empower any officer or the State Representative to prefer an appeal before the Appellate Tribunal and that again has to be done by routing his request through the head of the department, namely, the Commissioner of Commercial Taxes or through an officer authorised by the Commissioner of Commercial Taxes. Otherwise, the system will fail and the hierarchy of the officers will have no meaning. If the reasoning of the Tribunal is accepted, and if it is held that the State Representative can prefer an appeal either on his own or on a request made by an officer of the department, the State Representative, can either choose or not choose to prefer an appeal before the Appellate Tribunal depending on his own notions and at his whims and fancies, and this would be giving him unbridled and unguided power to the State Representative and the Legislature rightly has not chosen to create this sort of chaotic situation. Take yet another situation, which may lead to an absurd result, if the conclusion reached by the Tribunal is accepted. Under sub-section (1A) of section 3 of the Act, the Commissioner is empowered to appoint an officer not below the rank of the Assistant Commissioner of Commercial Taxes to perform the functions of a State Representative. In the hierarchy of officers in the department, the Joint Commissioner and the Deputy Commissioner are his senior officers. If the Revenue is aggrieved by the orders passed by the Joint Commissioner in exercise of his powers under section 21 of the Act or the orders passed by the Deputy Commissioner under section 20 of the Act, it can prefer appeals to the Appellate Tribunal. If an Assistant Commissioner, who is a junior officer in the hierarchy of officers in the department is allowed to prefer appeal/appeals before the Tribunal without specific authorisation by the State Government, he would be deciding the correctness or otherwise of the orders passed by his superior officer either to prefer or not to prefer any appeal before the Tribunal. The same is impermissible either under common law or under sales tax provisions. The same is impermissible either under common law or under sales tax provisions. Therefore, the Legislature, in order to avoid such an anomalous situation, has entrusted the power to the State Government to scrutinise the orders passed by the officers under the Act, may be at the instance of the Commissioner of Commercial Taxes and take a decision whether to prefer an appeal before the Tribunal against the orders passed by an officer, who is superior in rank, than, that of the State Representative. Therefore, in our opinion, under section 3(2) of the Act, a State Representative is competent to prefer an appeal after he is authorised to do so by the State Government and effectively pursue the same. The memorandum of appeal that he prefers before the Tribunal contains the grounds on which judicial examination is invited. The making of "an appeal" is not equivalent to "memorandum of appeal". The expressions "appeal" and "memorandum of appeal" are used to denote two distinct things. For the purposes of limitation and for the purposes of the Rules of the court or the Tribunal, it is required, that, a written memorandum of appeal requires to be filed. Preparation of such an appeal, filing it and effectively pursuing it, is entrusted to the State Representative and this process would commence only, when the State Government authorises him or any other officer under the Act to prefer an appeal to the Appellate Tribunal against the orders specifically provided under section 22 of the Act, by following the procedure prescribed under rule 30 of the Karnataka Sales Tax Rules, 1957. Therefore, necessarily we have to hold that the appeals presented by the State Representative before the Appellate Tribunal was without authority of law. Therefore, necessarily we have to hold that the appeals presented by the State Representative before the Appellate Tribunal was without authority of law. The learned Advocate-General, who appeared for the Revenue, may be realising the procedural error committed by the State Representative when he presented the appeals before the Appellate Tribunal against the orders passed by the first appellate authority, files a memo dated June 2, 2005 before this court, enclosing a copy of the order of the State Government dated May 31, 2005, according post facto permission to the State Representative in the Karnataka Appellate Tribunal, to prefer appeals under section 22(1) of the Act in respect of sixty two (62) appeals which are disposed of by the Tribunal by its common order dated October 21, 2004 and copy of the same is also furnished to the learned counsel Sri G. K. V. Murthy for the petitioner. The order passed by the State Government dated May 31, 2005 ratifying the action of the State Representative is as under : "Government order No. LAW 509 LSM 2005, Bangalore, dated May 31, 2005. In the circumstances explained above, post facto permission is accorded in respect of 62 appeals, vide, Nos. STA 215, 288, 289, 290, 291, 292, 867, 868, 869, 870, 871, 936, 937, 938, 939, 940, 941, 942, 943, 944, 945, 946, 1065, 1066, 1067, 1068, 1069, 1071, 1073, 1082, 1152, 1154, 1156, 1158, 1160, 1161, 1162, 1217, 1218, 1219 of 2004, STA Nos. 183, 1064, 1070, 1072, 1151, 1153, 1155, 1157, 1159, 1215 of 2004 and STA Nos. 1074, 1075, 1076, 1077, 1078, 1079, 1080, 1081, 1216, 1220, 1221, 1163 of 2004 filed by State Representative Sri Syed Jamal before the Karnataka Appellate Tribunal, Bangalore, which are already disposed of. By order and in the name of the Governor of Karnataka - Sd/- (VINEETHA P. SHETTY) Asst. Solicitor and Ex Officio, Under Secretary to Government, Law Department (Lit-II)." The learned counsel for the petitioner after going through the memo filed by the learned Advocate-General, would contend, that the post facto permission granted by the State Government authorising the State Representative for having filed sixty two (62) appeals before the Tribunal still remains, the acts, without any authority or power and that defect cannot be cured by subsequent post facto permission/ratification. The issue that now falls for our consideration is, whether post facto permission or the order passed, ratifying the action of the State Representative by the State Government would cure the defect pointed by learned counsel for the petitioner ? We have already pointed out that under section 3(2) of the Act, the State Representative is competent in a proceeding before the Appellate Tribunal to prepare a memorandum of appeal and effectively pursue the same on behalf of the State Government. When he preferred the appeal in the present cases before the Appellate Tribunal, he was not empowered to do so by the State Government as required under section 22 of the Act. This is a procedural irregularity committed by the State Representative. This action of the State Representative is now ratified by the State Government, by granting post facto permission and thereby ratifying his action in preferring the appeals before the Appellate Tribunal and in our opinion, this post facto permission or ratification of the action of the State Representative by the State Government relates back to the date when the appeals were presented by the State Representative before the Appellate Tribunal. In Parameshwari Prasad Gupta v. Union of India [1973] 2 SCC 543; AIR 1973 SC 2389 , the Supreme Court has observed : "Even if it be assumed that the telegram and the letter terminating the services of the appellant (the General Manager of the Company) by the Chairman was in pursuance to the invalid resolution of the Board of Directors passed on December 16, 1953 to terminate his services, it would not follow that the action of the Chairman could not be ratified in a regularly convened meeting of the Board of Directors. The point is that even assuming that the Chairman was not legally authorised to terminate the services of the appellant, he was acting on behalf of the company in doing so, because, he purported to act in pursuance of the invalid resolution. Therefore, it was open to a regularly constituted meeting of the Board of Directors to ratify that action which, though unauthorised, was done on behalf of the company. Therefore, it was open to a regularly constituted meeting of the Board of Directors to ratify that action which, though unauthorised, was done on behalf of the company. Ratification would always relate back to the date of the act ratified and so it must be held that the services of the appellant were validly terminated on December 17, 1993 by the Chairman." The apex court in the case of High Court of Judicature for Rajasthan v. P. P. Singh [2003] 4 SCC 239; AIR 2003 SC 1029 , has observed that "even in a case where the initial action is illegal, the same can be ratified by a competent authority therefor". The Supreme Court in the case of Devender Pal Singh v. State of N.C.T. of Delhi [2002] 5 SCC 234; AIR 2002 SC 1661 , has observed : "... Procedure is handmaid and not the mistress of law, intended to subserve and facilitate the cause of justice and not to govern or obstruct it. Like all rules of procedure, the requirement of recording 'under his own hand' demands an approach, which would be rational and practical and not otherwise." In Re, the State of Punjab v. Shamlal Murari [1976] 1 SCC 719; AIR 1976 SC 1177 , the apex court has held : "... Procedural law is not to be a tyrant but a servant, not an obstruction but an aid to justice. ... Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. Where the non-compliance, though procedural, will thwart fair hearing or prejudice doing of justice to parties, the rule is mandatory. But, grammar apart, if the breach can be corrected without injury to a just disposal of the case, the court should not enthrone a regulatory requirement into a dominant desideratum. After all, courts are to do justice, not to wreck this end-product on technicalities." Further, the court has observed : "... So even what is regarded as mandatory traditionally may, perhaps, have to be moderated into wholesome directions to be complied within time or in extended time." The apex Court in the case of Sardar Amarjit Singh Kalra (dead) by LRs. v. Pramod Gupta (Smt.) dead by LRs. So even what is regarded as mandatory traditionally may, perhaps, have to be moderated into wholesome directions to be complied within time or in extended time." The apex Court in the case of Sardar Amarjit Singh Kalra (dead) by LRs. v. Pramod Gupta (Smt.) dead by LRs. [2003] 3 SCC 272; AIR 2003 SC 2588 , has laid down that : "Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice ... With the march and progress of law, the new horizons explored and modalities discerned and the fact that the procedural laws must be liberally construed to really serve as handmaid, make it workable and advance the ends of justice, technical objections which tend to be stumbling blocks to defeat and deny substantial and effective justice should be strictly viewed for being discouraged, except where the mandate of law, inevitably necessitates it." The Supreme Court in the case of the Marathwada University v. Seshrao Balwant Rao Chavan AIR 1989 SC 1582 has observed : "24. By this resolution, we are told that the Executive Council has ratified the action taken by the Vice-Chancellor. Ratification is generally an act of principal with regard to a contract or an act done by his agent. In Friedman's Law of Agency (Fifth Edition) Chapter 5 at page 73, the principle of ratification has been explained : 'What the "agent" does on behalf of the "principal" is done at a time when the relation of principal and agent does not exist : (hence the use in this sentence, but not in subsequent ones, of inverted commas). The agent, in fact, has no authority to do what he does at the time he does it. Subsequently, however, the principal, on whose behalf, though without whose authority, the agent has acted, accepts the agent's act, and adopts it, just as if there had been a prior authorisation by the principal to do exactly what the agent has done. The agent, in fact, has no authority to do what he does at the time he does it. Subsequently, however, the principal, on whose behalf, though without whose authority, the agent has acted, accepts the agent's act, and adopts it, just as if there had been a prior authorisation by the principal to do exactly what the agent has done. The interesting point, which has given rise to considerable difficulty and dispute, is that ratification by the principal does not merely give validity to the agent's unauthorised act as from the date of the ratification : it is antedated so as to take effect from the time of the agent's act. Hence the agent is treated as having been authorised from the outset to act as he did. Ratification is "equivalent to an antecedent authority".'