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Ogm Institute Of Technology Society vs. The Intelligence Officer

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WP(C)/28644/2019HC KeralaGSTCNR KLHC01074639201928 October 2019Bench: HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR4 pages

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR MONDAY, THE 28TH DAY OF OCTOBER 2019 / 6TH KARTHIKA, 1941 WP(C).No.28644 OF 2019 PETITIONER: OGM INSTITUTE OF TECHNOLOGY SOCIETY RAVIS ARCADE, NEAR IRON BRIDGE, KOLLAM, REPRESENTED BY ITS AUTHORISED SIGNATORY GOPAKUMAR SREEDHARAN PILLAI. BY ADVS. SRI.S.ANIL KUMAR (TRIVANDRUM) SRI.M.RAJAGOPAL RESPONDENTS: 1 THE INTELLIGENCE OFFICER SQUAD NO.1, COMMERCIAL TAXES, TAXES COMPLEX, ASRAMOM, KOLLAM-691002. 2 THE ASSISTANT COMMISSIONER (APPEALS), KERALA STATE GST DEPARTMENT, TAXES COMPLEX, ASRAMOM, KOLLAM-691002. 3 DEPUTY TAHSILDAR, KOLLAM TALUK, KOLLAM-691001. SMT. M M JASMINE; GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No.28644 OF 2019 2 JUDGMENT Against Ext.P6 penalty order under the KVAT Act, the petitioner preferred Ext.P7 appeal and Ext.P7(a) delay condonation application before 2nd respondent. The 2nd respondent by Ext.P9 order rejected the application for condonation of delay. Immediately, thereafter, Ext.P10 and Ext.P10(a) notices were issued and recovery steps were initiated for the recovery of the amounts confirmed against the petitioner by Ext.P6 penalty order. Petitioner impugns Ext.P9 order in this writ petition.

2.

I have heard the learned counsel appearing for the petitioner and also the learned Government Pleader appearing for the respondents.

3.

On a consideration of the facts and circumstances of the case as also the submissions made across the Bar,and on perusal of Ext.P9 order, I find that while dismissing the application for condonation of delay, the 2nd respondent Appellate Authority has made observations regarding the merits of the appeal also. If the Appellate Authority was not satisfied with the explanation offered by the petitioner for the delay occasioned in filing the appeal, then the order passed by the authority dismissing the delay condonation application should have stated the reason as to why the explanation offered by the

WP(C).No.28644 OF 2019 3 petitioner was not satisfactory. Ext.P9 order, apart from stating that the reason stated by the assessee were not convincing, does not give any reason as to why the explanation was not convincing. On the contrary, the 2nd respondent proceeded to examine the grounds of appeal and then give his findings on the merits of the contentions raised by the petitioner in the appeal. In my view, when an application seeking condonation of delay was dismissed, it was not proper for the 2nd respondent to have considered the matter on merits thereafter. Accordingly, I quash Ext.P9 order and direct the 2nd respondent to consider Ext.P7 appeal preferred by the petitioner on merits within a period of two months from the date of receipt of a copy of this judgment. It is made clear that till such time as orders are passed by the 2nd respondent as directed and the order communicated to the petitioner, recovery steps pursuant to Ext.P10 and P10(a) notices shall be kept in abeyance. The petitioner shall produce a copy of the writ petition together with a copy of this judgment, before the 2nd respondent, for further action. A.K.JAYASANKARAN NAMBIAR JUDGE SJ

WP(C).No.28644 OF 2019 4 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF THE NOTICE DATED 09.02.2013 ISSUED UNDER SECTION 47(2) OF THE ACT. EXHIBIT P2 COPY OF THE ORDER DATED 18.02.2013 IN W.P. (C) NO.4292/2013 OF THIS HONOURABLE COURT. EXHIBIT P3 COPY OF THE INSPECTION REPORT IN RESPECT OF THE PROPOSED INSTITUTION DATED 19.02.2013. EXHIBIT P3 A COPY OF THE INSPECTION REPORT IN RESPECT OF THE PLACE WHERE MACHINES ARE STORED DATED 19.02.2013. EXHIBIT P4 COPY OF THE JUDGMENT DATED 20.02.2013 IN W.P.(C) NO.4292/2013 OF THIS HONOURABLE COURT. EXHIBIT P5 COPY OF THE SIMPLE BOND DATED 21.02.2013. EXHIBIT P6 COPY OF THE ORDER DATED 15.07.2017. EXHIBIT P7 COPY OF THE APPEAL MEMORANDUM DATED 27.03.2019. EXHIBIT P7 A COPY OF THE PETITION FOR CONDONING DELAY DATED 27.03.2019. EXHIBIT P8 COPY OF THE NOTICE ISSUED BY THE SECOND RESPONDENT DATED 09.07.2019. EXHIBIT P9 COPY OF THE ORDER DATED 29.08.2019. EXHIBIT P10 COPY OF THE NOTICE DATED 07.02.2019. EXHIBIT P10 A COPY OF THE NOTICE DATED 23.02.2019.

Reproduced from the public record of the Kerala High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.