Home » State of Kerala V. Havea Combines, S.T.R. No. 209 of 2008 Ker.
State of Kerala V. Havea Combines, S.T.R. No. 209 of 2008 Ker.
Tags:Constitution--Art.165
2009 (1) KLT 451
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Chief Justice H.L.Dattu and Justice A.K.Basheer
S.T.R. No. 209 of 2008
State of Kerala v. Havea Combines
Advocates appearing for the Parties : K.Vinod Chandran; x
H.L.Dattu, C.J.<?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />
1. These Revision Petitions are filed by
the Revenue, being aggrieved by the common order
passed by the Sales Tax Appellate Tribunal, Additional Bench, <?xml:namespace prefix = st1 ns = "urn:schemas-microsoft-com:office:smarttags" />Kozhikode in TA.Nos.78,79, 81 to
90/2001 dated 27th March, 2002. By the impugned order, the Tribunal has allowed assessee's appeal and
has set aside the orders passed by the Assistant Commissioner(Assessment), Sales Tax
Office, Special Circle II, Kozhikode, assessing them for the assessment years
1986-1987 and 1987-1988 both under Kerala General Sales Tax Act, 1963 (K.G.S.T. Act, for
short) and Central Sales Tax Act, 1956 (CS.T. Act, for short) (M/s. Havea Combines). For
the year 1987-88 and 1988-1989 both
under K.G.ST. Act and C.S.T. Act only Sri. Rauf has been assessed as the
proprietor of concern M/s.Jaimond Traders.
Revision Petitions are filed nearly after six and half years from the date
passing of the order. Therefore, an application under S. 5 of the Limitation Act
is filed to
condone the delay in filing these Revision Petitions.
3. The reasons stated in
the affidavit filed in support of the application apart from others are, that the tax revision cases
relates to assessment years 1986-1987 and 1987-1988; the Sales Tax Appellate Tribunal,
Addl. Bench, Kozhikode vide their order dated 27.3.2002 has allowed 12 appeals
filed bytheassesseeinTA.Nos.78/2001 and connected cases; though the
Tribunal passed the order on 27.3.2002, copy of the same was served on the Commercial Taxes
Department only on 27.5.2002; after examining the order along with
connected files the Law Officer, Department of Commercial Taxes, Kozhikode
placed the files before the Deputy Commissioner (General), Department of Commercial Taxes,
Thiruvananthapuram with a proposal to file Tax Revision Cases against the orders
passed by Sales Tax Appellate Tribunal on 4.6.2003; the Deputy
Commissioner (Int) as per his letter No.KE 10.5777/01 dated 28.6.2002 had also
sent a proposal to the Deputy Commissioner (General), Thiruvananthapuram to file Revision Petition;
the file along with the Tribunal's order was despatched to the Office of
Advocate General vide letter No. D2.141/02 dated 24.7.2002 and the same was
received in the office of the Advocate General on 27.5.2002; the file was
submitted to the then Special Government Pleader (Taxes) for examining the scope
for filing Revision Petition; on 10.6.2004 the Government Pleader opined that it is not fit cases for
filing of Revision Petitions; the legal opinion of the Special Government
Pleader (Taxes) was approved by the then Additional Advocate General on 2.7.2004; the legal opinion
of the Special Government Pleader as approved by the Additional Advocate General
was communicated to the office of Joint Commissioner of Law Department, Commercial
Taxes, Emakulam on 3.11.2004; the Joint Commissioner (Law), Department of
Commercial Taxes by his letter No.D2-141/02 dated 5.11.2004 requested the then
the Advocate General to reconsider the
legal opinion; the Special Government Pleader (Taxes) by his letter dated
6.1.2005 reiterated his earlier
opinion that there is no scope for filing Revision Petition; on 21.2.2005
the Additional Advocate General approved the opinion of the Special Government Pleader (Taxes); the Secretary,
Department of Taxes, Government of Kerala vide letter No.239/C1/05/TD dated 1.3.2005
requested the Advocate General to
make necessary arrangements to file Revision Petitions before the High Court;
the said letter was placed before
the Special Government Pleader (Taxes) on 28.3.2005 by the Advocate General;
several reminders were sent to Advocate General's Office and since there
was no response, the Secretary (Taxes) and the Commissioner of Commercial Taxes
by their letter dated 30.6.2005 and 1.7.2005 yet again made a request to the Advocate General to reconsider the
opinion and file Revision Petitions, if possible; this request did not
yield results.
the affidavit, it is further stated that on 3.7.2007, the Commissioner of
Commercial Taxes vide letter No.C5-72142/04/CT requested the Secretary to
(Taxes) to issue appropriate instruction to the office of Advocate General
filing Revision Petitions. It is also stated that on 28.7.2007, the Secretary
Taxes Department
again requested the Advocate General to reconsider the matter. Thereafter,
the files were placed on 5.9.2007 before the Special Government Pleader
(Taxes)
for reconsideration of legal opinion. After reconsideration of the matter and
of the assessment records and other documents, the Special Government
Pleader
opined that there is scope for filing of Revision Petition. It is further stated
that due to heavy work, the section took time till 20.6.2008 for preparing the
and immediately thereafter the petition was filed before the Court. Therefore,
is a delay of nearly 2127 days in filing the Revision Petition and the same was
unintentional
and for bona fide reasons and the same requires to be
condoned.
the matter was posted for consideration of application for condonation
delay, we had requested Sri Jacob P. Alex, learned counsel to assist us after
going through the entire
learned counsel after scrutinizing the records has brought to our notice
as per the noting in the original records, dated 11.7.2005, 16.7.2005 and
19.7.2005,
the files were pending consideration before the Advocate General himself.
is also brought to our notice that by a letter dated 28.7.2007, the Additional
to Department of Taxes addressed to Advocate General there is a reference
the letter of the Advocate General dated 14.11.2005. From this letter, it is
revealed that
the then Advocate General had considered the request of Secretary to
(Taxes) and had opined that after discussing the issues involved in the
passed by the Tribunal, that, the Revision Petitions need not be filed, since
does not have any case on merits. It is also brought to our notice that
department has not explained the delay between 14.11.2005 and 28.7.2007
nearly for two years. By referring to original records, it is brought to our
notice that,
the then Advocate General had considered the suggestion of the Department
file revision and vide his letter bearing No.SS.41/05/AG dated 14.11.2005 had in
communicated his advice not to file the Revision Petition. It is also brought to
notice that it is only on 28.7.2007 vide letter No. 14737/C1/2007/TD, the
Secretary, Taxes
Department again requested the Advocate General to reconsider the matter
on the letter of Commissioner dated 3.7.2007. It is stated from the records and
from the affidavit filed for condonation of delay in filing the Revision
Petition, it could
be gathered that between the period 14.11.2005, the date of opinion of
General and 28.7.2007, the date of letter from Secretary (Taxes) to Advocate
there was no material or materials showing the intention of the Department
file Revision Petitions. Alternatively, the learned counsel suggests that the
seems to have agreed with the view of the learned Advocate General and
for about 20 months no steps were taken to file Revision Petition. It is also
stated that
there are no materials on record showing that the department was diligently
prosecuting
the matter during this period.
have heard Sri.Vinod Chandran, learned Government Advocate and Sri.Jacob
P. Alex, amicus curiae. The learned Government Advocate submits that the
was repeatedly requesting the office of the Advocate General to prefer
Petitions against the common order passed by the Appellate Tribunal and
request was repeatedly turned down by the learned Government Pleader (Taxes)
his opinion was not only endorsed by the learned Additional Advocate General
also the learned Advocate General and therefore, it cannot be said that the
Department was not diligent in its efforts to get the Revision Petition filed
before this
Court. In aid of his submission, the learned counsel relies on the observations
by the Apex Court in the case of
Joginder Singh Wasu v. State of Punjab ((1994) 1
SCC 184). In the said decision, the court has stated that the relationship
between the Advocate General and the State Government is essentially that of an
advocate and
a client in relation to his appearance in the court and arguing the case before
court on behalf of the State. The court has further stated that the office of an
General is an exalted one. He is the Supreme Law Officer of the State. He
treated on par with the Minister. Having regard to his high position, when any
or a concession is made by him, the courts have always accepted his statement and has acted
on that.
Sri.Jacob
P.Alex, would tell us, that, when it comes to provisions regulating period
of limitation in fiscal statutes, it requires to be strictly construed. In aid
of his submission,
the learned counsel brings to our notice the observation made by Apex
in the case of K.M. Sharma v. I.T.Officer (AIR 2002 SC1715). In the said
decision, the
court has stated that the "fiscal statutes more particularly on a provision such
as the
present one regulating the period of limitation, must receive strict
construction. Law
of Limitation is intended to give certainty and finality to legal proceedings
avoid exposure to risk of litigation to litigant for indefinite period on future
unforeseen
events. The learned counsel also brings to our notice the observations
by Apex Court in the case of J.K. Cotton Spinning and Weaving Mills v.
Collector of
Central Excise, ((1988)
3 SCC 540), wherein the court has observed: "Hence that limitation
period should not be stretched more than the elasticity supplied in the
itself".
9. S.
41 of the K.G.S.T. Act provide for filing of Revision Petition both by the
and also a person aggrieved by the orders passed by the Appellate Tribunal.
Sub-s.(1) envisages that such a Revision Petition requires to be filed within
from the date of service of the copy of the order passed by the Tribunal. Proviso appended to the section gives discretion
to the court to condone the delay in filing the Revision Petition, if the
court is satisfied that the revision petitioner had sufficient cause for not
preferring the petition within the period envisaged under
sub-s.(1).
The common order passed by the Appellate Tribunal in the appeals filed by
assessee is dated 27.3.2002 and the same was received by the Commercial Taxes
on 27.5.2002. In view of sub-s. (1) of S. 41 of the K.G.S.T. Act, the last
for filing the Revision Petition was 24.8.2002. A request was made by the
officers of
the Department with Special Government Pleader (Taxes) to offer his opinion
whether Revision Petition could be filed
questioning the correctness or otherwise of the order passed by the
Tribunal. The law officer concerned after elaborately considering the order passed, has opined that the
Tribunal being the last fact finding authority on the basis of materials
available on record has entered a finding and that finding on fact is not a perverse finding
and therefore no question of law arises in the case as to file a Revision Petition
before this Court under S.41 of the Act, since the Revision Petition is
maintainable before this court, only if the Tribunal has erroneously decided the
question of law or failed to decide the question of law and not under any other circumstances. The legal
opinion was endorsed by the learned Additional Advocate General as required under the
Kerala Government Law Officers (Appointment and Conditions of Service) and
Conduct of Cases Rules, 1978. When the Department has made yet another
request to reconsider their earlier opinion, the law officer of the State has
reiterated his earlier stance and that was again approved by the learned
Additional Advocate General. While reiterating his earlier opinion, the learned
Government Pleader (Taxes) has stated:
had once again gone through the order passed by the Tribunal, first
appellateauthority
and the assessing authority. As per letter dated 5.11.2004, the Joint
pointed out several factual aspects to saddle Sri. Rauf and his wife with the
liability of proprietary
concern. The contention of the Joint Commissioner will not stand in the eye of
The assessing officer had jumped into conclusions basing on the transactions or
which have no direct or even remote connection with the assessee. In my opinion,
if the reasoning in the assessment order is taken as a valid one, no person in
the country is safe. An assessing officer can saddle with huge liability on any
person with whom the officer has some
grievance………..
…. ….None of the aspects pointed out by the Joint
Commissioner will amount to a question of
law. A finding of fact entered by the final fact finding authority cannot be
challenged in revision
as if the revisional jurisdiction is an Appellate Jurisdiction empowering the
Hon'ble Court to reappraise the entire evidence. I am of the
firm opinion that there is no scope for filing any
revision".
11. In spite of this second opinion, the
department was not prepared to give quietus
to the issue. They again requested the then Advocate General by their
dated 1.3.2005 to offer his opinion about the feasibility of
filing Revision Petitions against the
orders passed by the Tribunal. The learned Advocate General by his letter
dated 14.11.2005 has informed the
department in a lucid manner and has told them to drop their
misadventure. We will only quote just one paragraph in his opinion, which gives a clear picture which prompted him
to tell the department to reconsider their view on the subject
"Let
us go further. What is the remedy for the State now to get over this dilemmatic
of the Tribunal. The remedy is nothing but Revision. Is Revision an automatic
game in the
field of law? The answer is only a big "NO", the Revision can be filed only when
there is illegality,
irregularity or impropriety. As the learned Special Government Pleader (Taxes)
has opined
twice and approved by none other than the Additional Advocate General, I find it
to discard it. Another redeeming feature which tickles me is the theory which is
accepted under law is, that even assuming for argument sake that there is a
solid reason
to hold otherwise, yet if the reasoning given by the Tribunal or Court below is
not otherwise
unreasonable or is not stigmatized by any error apparent on the face of record,
cause (sic. course) will be to accept the view or theory proposed by the
Tribunal."
The aforesaid paragraph
which we have extracted would go to show that the request of the Government was
considered by the learned Advocate General himself and he had advised the State
Government that it is not worthwhile to file the Revision Petitions. From the
records, it looks to us, that, the State Government had accepted the advise of
the learned Advocate General.
In between 14.11.2005
and 28.7.2007, nothing seems to have happened. It is only on 28.7.2007, the
department corresponds with the learned Advocate General with a request to file the Revision
Petition. In turn records are placed before the Special Government Pleader (Taxes) and nearly
after seven months, the Revision Petitions are filed with an application for
condonation of delay of nearly 2127 days.
so far as delay of nearly 20 months between 14.11.2005 and 28.7.2007,
explanation forthcoming in the affidavit filed along with the application. But at the time of hearing, the learned
Government Advocate, Sri.Vinod Chandran, states that the elections for the Legislative
Assembly had been declared and therefore, the department could not persuade the learned
Advocate General to reconsider his opinion, and in so far as the delay
between 28.7.2007 and till the date of filing the Revision Petitions ie., 20.6.2008, the only
explanation is, that, due to heavy work in the office of the Advocate General,
the paper books could not be prepared and due to pressure of work,
Revision Petition could not be prepared.
15. Now the question is,
whether the delay in filing the Revision Petitions is satisfactorily explained
by the Department so as to accept their explanation and condone the delay in
filing the Revision Petitions.
the present case, three law officers of the State Government had opined
since the orders passed by the Appellate Tribunal is purely based on
appreciation of facts and since the
findings of the Tribunal is not a perverse finding, there is no scope to file the Revision Petitions against the
orders passed by the Appellate Tribunal. The learned Advocate General in
his detailed opinion had advised the State Government that, the orders passed by the
Tribunal requires to be accepted by the State Government, since the
findings of the Tribunal is based on facts alone.
this stage, it may be necessary, how far the value of the Advocate General
the State Government. Art. 165 of Indian Constitution was adopted from S.55
Government of India Act, 1935 that introduces Office of Advocate General in the Province. Advocate General for a State
shall have the same position in the State as that of the Attorney General
in relation to the Union. The Joint
Parliamentary Committee report that envisages the Office of Advocate General
opined:
"…We
think, in particular, that the existence of such an office would prove a
valuable aid
to a Ministry in deciding the difficult questions which are not infrequently
raised by those
prosecutions which require the authority of Government for their intention,
though we
recognize that the responsibility for decisions in these matters must of
necessity rest in the last resort in the Government itself. (JPC Report,
Para 400-401)".
18. It is also
necessary to note that Office of Attorney General and/or Advocate General
is of English origin. United
States of America also adopted this office for
advising the State. In Corpus Juris
Secundum, it is stated that:
"Judicial
effect: It is broadly held that an attorney general's opinion is entitled to
weight and respectful consideration, but it has no controlling authority upon
of the law discussed in it and standing alone is not to be regarded as legal
precedent or
authority of such character as judicial decisions. So an Attorney General does
not supplant
the courts in advising State officers as to the constitutionality of statutes,
but given his
opinions for such officers' guidance until questions concerning are decided by
the courts.
An Attorney General's opinion is not a 'determination' reviewable by a
proceeding against a governmental
body or officer."
19. In
Halsbury's Laws of England, it is stated that:
the eyes of the court Attorney General's opinion is entitled to no more
authority than
that of any other member of Bar….Admissions by the Attorney General bind the
Crown as a
matter of fact, but not as matters of law".
The Supreme Court in Periyar and Pareekanni Rubber Ltd. v. State of Kerala,
((1991)
4 SCC 195), ruled that 'concession made by Government Pleader cannot bind the Government unless it is specifically
given in writing. But the same yardstick cannot be applied when Advocate
General has made a statement across the bar'.
Thus in law and in practice, it could be concluded that the opinion of Advocate
though to be given substantial weight and respectful consideration is not
binding on the Government as statute or verdicts of
Courts.
The opinion/advise so given by the
Advocate General are not binding on the succeeding Advocate General. In Corpus Juris
Secundum, it is stated:
"The
Attorney General lacks such authority as will enable him to bind a succeeding
General not to bring an action or not to take an appeal, where the latter
believes it be for the interest of
the State to do so".
The Governor under Art.165(2) has
made Rules Regulating the Conditions of Service, Duties, Remuneration,
etc. of the Advocate General and Additional Advocate General, Kerala, (Pub. by
Notification No.LD(A) 1-3006/56/law dt.01.11.1956). Relevant Rules, in the
context of the above case, are:
2(ii).
to advise the Government whenever required and the Board of Revenue or the
in respect of appeals to the High Courts in cases where the Board of Revenue or
Collector has been authorised to sanctions the filing of such
appeals.
to the above, Heads of Department who require the advise of the Advocate
General should address the Government in the Secretariat Department concerned
the Government will decide whether the advice of the Advocate General should be
sought or
2(xi).
to give advice to the Law Officers attached to the High Court in all difficult
cases handled by them…. and
also to supervise and control their work.
2(xiv).
in particular, in the said proceedings whenever a decision adverse to the
Government has been rendered, to report to Government immediately and advise
about the further action to be taken, to apply on the very date of the decision
a copy thereof, to obtain the same expeditiously and to forward the copy to
Government with this further
advice;
2(xv).
to report to Government about the advisability of pursuing the matter further by
of appeal or otherwise in such cases were decisions have been rendered against
and in such other cases where he considers it necessary to do so.
Constitution of
India confers certain
Constitutional/Statutory functions on the Advocate General and with regard to
those function, the final decision making authority is the Advocate General
himself. Those functions are:-
Constitution of India (Art.
177); Code of Civil Procedure (Ss. 91 and 92); Code of Criminal
Procedure (S. 302), Advocates Act (S. 23) etc. are to be carried out by the
General himself and is not dependent on the decision of the
25. In so far as initiation
of litigation in High Court is concerned, the role of Advocate General as per the relevant Rules is
only to 'advice' the Government and the final authority to take a
decision on the said advice is the Government itself. Government is free to take decisions regarding
the initiation/filing of cases as it deems fit subject to the relevant
laws. But at the same time, the advice/opinion furnished by the learned Advocate General should not be
easily brushed aside by the executive except in exceptional cases and
that too for valid reasons.
26. Nearly
after twenty months, the department starts once again corresponding with the learned
Advocate General to file Revision Petitions as was done by them earlier. Even
though Advocate General himself did not appear to have personally perused the file or formed an opinion (according
to the original records), nonetheless, authorised the Special Government Pleader
(Taxes) to take an appropriate decision. Thus, the earlier opinion of the
Advocate General on 14.11.2005 could be treated as reconsidered by his successor, though he does
not say it in so many words as it had been done by his predecessor in
office. The noting made by him on the letter addressed to him by the Secretary,
Department of Taxes would only show that he has accepted the request of the
Department. We are not expected to comment on this aspect of the matter, since
he is a Constitutional functionary.
27. It is true that
considerable delay of procedural red tape is in the process of Government making
decision is a common feature. Therefore, certain amount of latitude is not impermissible. [SeeState of
Haryana v. Chandra Mani ((1996) 3 SCC132); Spl. Tahsildar v. K.V.Ayisumma (1996 (2) KLT 582 (SC) = (1996) 10 SCC 634);
and,' Stare of Nagaland v. Lipok A.O. (2005 (2) KLT 547 (SC) = (2005) 3
SCC 752). It is also true that, if there is conflict of legal advice
between Government Pleaders and the same is liable to be considered as one of
the good reasons for the delay in filing a correction petition before the
superior forum. Further, it is also true that the mistaken advice given by the legal practitioner may, in
the circumstances of a particular case, give rise to sufficient cause for
condoning the delay, though there is certainly no general doctrine which saves
the parties from the results of wrong advice.
S.41 of the K.G.S.T. Act incorporates a statutory period of ninety days within
Revision Petition requires to be filed by a person aggrieved. It is well settled
of law that such an application should not be filed after unreasonable delay.
is expected to look at the explanation for the delay and judge whether the explanation is satisfactory and the court must
also be satisfied that there was diligence on the part of the petitioner
and the petitioner was not guilty of negligence whatsoever. In the instant case,
we will accept the explanation offered by the department till 14.11.2005, i.e.
the day on which the learned Advocate General opined that it may not be
necessary to file any Revision Petitions against the order passed by the Sales Tax Appellate Tribunal,
since the findings of the Tribunal is merely based on facts and as such the Tribunal has not
decided erroneously any question of law nor it has failed to decide the
question of law. After receiving this opinion, the department did not pursue the
matter further till 28.7.2007. In the affidavit filed, as we have already
noticed, there is no explanation, but at the time of hearing the application for
condonation of delay, the learned Government Advocate informs us that the
department did not pursue the matter with the Advocate General's office, only because the elections to the Legislative
Assembly had been announced by the Election Com mission. We do not understand how
this event comes in the way of the department in continuing their efforts to
persuade the Government Advocate (Taxes) or the learned Advocate General to
reconsider their earlier opinion and file Revision Petitions as requested by them earlier. Even
after declaration of assembly elections, the learned Advocate General who had given his
opinion continue to hold his office till 11.6.2006 and the new incumbent
took over on 12.6.2006. Therefore, Advocate General's Office continued to function, though
elections for constitution of Legislative Assembly was during the month
of April, 2006. There is no explanation, much less proper explanation, for this
delay of nearly 20 months.
29. In so far
as delay between 28.7.2007, that is, the date on which the learned Advocate General has authorised the Government
Advocate (Taxes) to file the Revision Petitions as requested by the department, till
the date of filing of the Revision Petition, i.e. 20.6.2008, the delay is explained by
stating that due to the pressure of the work in the office of the Advocate
General the Revision Petitions could not be filed. In this process, there is delay of nearly eleven months.
The explanation offered in this regard is neither reasonable nor
acceptable explanation for the delay sought to be condoned. Sufficient cause for delay cannot be found merely
by stating that the delay was caused by administrative reasons or by using
analogous expressions. Administrative reasons for delay does not ipso facto constitute
sufficient cause. The Apex
Court has recently held in the case of N.Balakrishnan v.
M.Krishna Moorthy, ((1998) 7 SCC123) and in State ofNagaland v. Lipok.A.O., (2005 (2) KLT 547 (SC) = (2005) 3 SCC 752),
that, length of delay is no matter,
acceptability of the explanation is the only criterion. The facts
disclosed in the affidavit filed along with the application does not inspire
confidence and therefore application filed requires to be rejected.
30. Apart from this, it is not the case of the
department that the learned Government Advocate, Additional Advocate General and
the learned Advocate General were working
against the interest of the State Government. If it were to be so, we could have definitely said that it is a
fit case where the delay in filing the petitions requires to be allowed.
They all had good intentions but the department was not prepared to accept their
advice.
31. S. 41 of the Act gives
discretion to the court to condone the delay in filing the Revision Petition, if
sufficient reasons are forthcoming in the application. If the sufficient cause is not shown, the court has no
choice but to reject the application. In the instant case, the applicants have not
assigned any reasons much less a reasonable
causetocondonethedelayofnearly20 months between 14.11.2005 and 26.7.2007,
till the date of filing of Revision Petitions. This unexplained delay is fatal
to the proceedings. If this inordinate
delay is condoned, it would affect and cause prejudice to the right of the other
side, since that is also one of the relevant factors that requires to be
kept in view, while considering the application for condonation of delay.
32. In view of the above
discussion, we cannot accept the prayer made in the application to condone the
delay of nearly 2127 days. Accordingly, application requires to be rejected and it is rejected and
consequently all the Revision Petitions are also rejected. In the facts and
circumstances of the case, parties are directed to bear their own
accordingly.