POSHAK TEXTILES v. ASSISTANT COMMISSIONER OF COMMERCIAL TAXES
2005-07-08
D.V.SHYLENDRA KUMAR
body2005
DigiLaw.ai
ORDER D. V. SHYLENDRA KUMAR, J. - Writ petition is directed against the order dated January 17, 2005, copy of which is produced as annexure D to the petition, passed by the first appellate authority dismissing the appeal as one barred by time. It is not in dispute that the appeal was presented beyond the outer limit of 180 days and the first appellate authority has rightly rejected the appeal being empowered to entertain the appeal only when it is not beyond the total period of 180 days, though the appeal itself is to be preferred within 30 days and thereafter it is by condoning the delay in preferring the appeal. However, Sri Narayana, learned counsel for the petitioner has a very convincing explanation as to how the petitioner could not present the appeal before the first appellate authority within the permitted time; that the petitioner was pursuing his remedy before the wrong forum, the appeal in the first instance was filed before the Karnataka Appellate Tribunal, who had initially admitted the appeal and called for records, but ultimately on noticing that the appeal should have been preferred before the other appellate forum was inclined to dismiss the appeal and by then the petitioner withdrew the appeal and thereafter presented the appeal before the first appellate authority, but the outer limitation period of 180 days had expired and the first appellate authority has dismissed the appeal. Therefore, learned counsel prays that this court should interfere and extend suitable relief. Learned counsel for the petitioner draws the attention of this court to a decision rendered by the Supreme Court in the case of State of Orissa v. Ion Exchange India Ltd. reported in [2000] 117 STC 436, that the Supreme Court has observed in exceptional cases the High Court can grant an order of stay, even in a situation where the appellate authority, i.e., the Tribunal was prohibited from granting any stay in respect of the subject-matter before it. The prayer in the present writ petition is for issue of directions to the first appellate authority that too to entertain the appeal after condoning the delay in filing the appeal. Condonation of delay, etc., comes only before the first appellate authority and not before this court. The mandamus sought for is to direct the authority without reference to the statutory provisions to entertain the appeal.
Condonation of delay, etc., comes only before the first appellate authority and not before this court. The mandamus sought for is to direct the authority without reference to the statutory provisions to entertain the appeal. A direction of this nature if issued, will be clearly contrary to the statutory provisions and I am of the firm view that a direction contrary to the statutory provisions cannot be issued to any authority to act in contravention of such statutory provision. See Jammu & Kashmir Public Service Commission v. Dr. Narinder Mohan [1994] 2 SCC 630, paras 10 and 11. However, it is open to the petitioner to pursue his other statutory remedy including a further appeal to the Tribunal, etc. Reserving liberty to the petitioner to pursue such other remedies as are open to him in law, this writ petition is dismissed.