Facts of the Case

M/s. Ganesh Sponge Private Limited filed a writ petition before the High Court challenging the matter arising under the applicable tax law. During the hearing, the petitioner sought permission to withdraw the writ petition with liberty to pursue the statutory appellate remedy available under the law.

The petitioner also requested that, if an appeal was filed after withdrawal of the writ petition, the appellate authority should consider the delay by taking into account the period during which the writ petition remained pending before the High Court.

 

Issues Involved

  1. Whether the petitioner should be permitted to withdraw the writ petition and pursue the statutory appellate remedy.
  2. Whether the appellate authority should consider an application for condonation of delay by taking into account the pendency of the writ petition before the High Court.
  3. Whether any observations of the High Court would prejudice the merits of the appeal.

 

Petitioner’s Arguments

  • The petitioner sought leave to withdraw the writ petition.
  • Liberty was requested to approach the competent appellate authority in accordance with law.
  • It was further prayed that if the appeal was filed on or before 1 February 2023, along with an application explaining that the delay occurred due to the pendency of the writ petition, the appellate authority should consider such application for condonation of delay in accordance with law.

 

Respondent’s Arguments

  • The order does not record any detailed submissions on behalf of the State or the tax authorities.
  • The matter was disposed of on the basis of the petitioner's request for withdrawal with liberty to avail the statutory appellate remedy.

 

Court Order / Findings

The Orissa High Court permitted the petitioner to withdraw the writ petition with liberty to approach the statutory appellate authority.

The Court directed that if the appeal was filed not later than 1 February 2023, accompanied by an application seeking condonation of delay explaining that the delay resulted from the pendency of the writ petition, the appellate authority should consider such application strictly in accordance with law.

The Court specifically clarified that it had not expressed any opinion on the merits of the case, thereby ensuring that the appellate authority would independently adjudicate the matter.

The Court also directed that the original annexures be returned to the petitioner after substituting them with attested photocopies.

Accordingly, the writ petition was disposed of as withdrawn with the liberty granted in the above terms.

 

Important Clarification

  • Withdrawal of a writ petition does not prevent a taxpayer from pursuing the statutory appellate remedy where liberty is granted by the High Court.
  • The appellate authority should independently examine the application for condonation of delay in accordance with the applicable law.
  • The period during which the writ petition remained pending may constitute a valid explanation for seeking condonation of delay, subject to the appellate authority's satisfaction.
  • The High Court expressly refrained from making any observations on the merits, ensuring that the appellate proceedings remain unbiased.

Sections Involved

  • Statutory Appellate Provisions under the applicable Odisha VAT/Sales Tax/GST law (as applicable)
  • Principles governing Condonation of Delay under the applicable appellate provisions.
  • Writ Jurisdiction under Article 226 of the Constitution of India.

Link to download the order -

https://www.mytaxexpert.co.in/uploads/1782982326_139.pdf

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