Soumya Traders vs. The State Tax Officer - Kerala High Court, 27 November 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR WEDNE AY, THE 27TH DAY OF NOVEMBER 2019 / 6TH AGRAHAYANA, 1941 WP(C).No.32178 OF 2019(V) PETITIONER/S: SOUMYA TRADERS CHERUMOODU, VELLIMON P.O, KOLLAM DISTRICT, REPRESENTED BY ITS PROPRIETOR R. RAVI, THROUGH HIS POWER OF ATTORNEY HOLDER G. SANTHOSH KUMAR, S/O. GOPALAKRISHNAN NAIR, PRASANTHI, AMBIPOIKA P.O, KOLLAM DISTRICT, PIN 691 501. BY ADVS. SRI.S.ANIL KUMAR (TRIVANDRUM) SRI.M.RAJAGOPAL SHRI.RAHUL A. RESPONDENT/S: 1 THE STATE TAX OFFICER SGST DEPARTMENT, KUNDARA, KOLLAM DISTRICT 691 002. 2 THE ASSISTANT COMMISSIONER (APPEALS), STATE GST DEPARTMENT, TAXES COMPLEX, ASRAMOM, KOLLAM 691 002. 3 THE ASSISTANT COMMISSIONER OF STATE TAXES, KERALA STATE GST DEPARTMENT, TAXES COMPLEX, ASRAMOM, KOLLAM 691 002. 4 THE BRANCH MANAGER, STATE BANK OF INDIA, COMMERCIAL BRANCH, KOLLAM 691

002.

GOVT.PLEADER DR.THUSHARA JAMES R4 BY ADV.JAWAHAR JOSE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.P(C) No.32178/19 2 JUDGMENT The challenge in the writ petition is against Ext.P4 series of orders passed by the first appellate authority under the Kerala Value Added Tax Act, 2003, rejecting an application for condonation of delay preferred by the petitioner assessee. It is the submission of the learned counsel for the petitioner that the delay occasioned was only 100 days and the petitioner had offered a satisfactory explanation for the delay giving details of the medical condition that he was facing. But, the respondent appellate authority not only ignored the said explanation but proceeded to make observations regarding the merits of the appeal as well.

I have heard the learned counsel for the petitioner, the learned Government Pleader for the respondents 1 to 3 and the learned counsel appearing for the 4th respondent bank. On a consideration of the facts and circumstances of the case and the submissions made across the Bar, I find that Ext.P4 series of orders rejecting the applications filed by the petitioner for condonation of delay cannot be legally sustained, inasmuch as there is no application of mind by the first appellate authority to the explanation given by the petitioner, and further the appellate authority proceeded to decide the issue on merits while dismissing the application for condonation of delay. I, therefore, quash Ext.P4 series of orders impugned in the writ petition and direct the 2nd respondent appellate

W.P(C) No.32178/19 3 authority to consider and pass orders on Ext.P2 series of appeal within a period of one month from the date of receipt of a copy of this judgment, after hearing the petitioner. It is made clear that till such time as orders are passed by the 2nd respondent, as directed, and the orders communicated to the petitioner, recovery steps for recovery of amounts confirmed against the petitioner by Ext.P1 series assessment orders shall be kept in abeyance. The petitioner shall produce a copy of the writ petition and a copy of this judgment before the 2nd respondent for further action. A.K.JAYASANKARAN NAMBIAR

JUDGE

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W.P(C) No.32178/19 4 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF ASSESSMENT ORDER DATED 02-04-2018 FOR THE YEAR 2015-16 EXHIBIT P1 A COPY OF ASSESSMENT ORDER DATED 02-04-2018 FOR THE MONTH OAPRIL, 2017. EXHIBIT P2 COPY OF APPEAL MEMORANDUM FILED BEFORE THE 2ND RESPONDENT AGAINST EXT. P1 ORDER. EXHIBIT P2 A COPY OF APPEAL MEMORANDUM FILED BEFORE THE 2ND RESPONDENT AGAINST EXT.P1(A) ORDER. EXHIBIT P3 COPY OF PETITION FOR CONDONING DELAY FILED IN EXT P2 APPEAL EXHIBIT P3 A COPY OF PETITION FOR CONDONING DELAY FILED IN EXT.P2(A) APPEAL. EXHIBIT P4 COPY OF ORDER DATED 8-04-2018 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P4 A COPY OF THE ORDER DATED 11-10-2019 ISSUED BY THE 2ND RESPONDENT U/S. 66 OF THE KVAT ACT. EXHIBIT P5 COPY OF LETTER DATED 19-11-2019 FROM THE 4TH RESPONDENT ADDRESSED TO THE PETITIONER.