A.K.Santhosh vs. The Deputy Commissioner - Kerala High Court, 16 February 2022

Cause title — parties, addresses and appearances

WP(C) NO. 5186 OF 2022 1 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS WEDNESDAY, THE 16TH DAY OF FEBRUARY 2022 / 27TH MAGHA, 1943 WP(C) NO. 5186 OF 2022 PETITIONER/S: A.K.SANTHOSH, AGED 65 YEARS PROPRIETOR, M/S. ARAKKATHARA TOURIST HOME, PALLURUTHY. BY ADVS. S.K.DEVI SHANMUGHAM D. JAYAN M.RAJ MOHAN RESPONDENT/S: 1 THE DEPUTY COMMISSIONER, SPECIAL CIRCLE (PRODUCE), STATE GOODS AND SERVICES TAX (DEPT.), MATTANCHERY-682002. 2 THE JOINT COMMISSIONER (APPEALS)V, STATE GOODS AND SERVICES TAX (DEPT), MG ROAD, ERNAKULAM- 682015. OTHER PRESENT: ADV.M.M.JASMINE-GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 5186 OF 2022 2 BECHU KURIAN THOMAS, J. ======================== W.P.(C) No. 5186 of 2022 ------------------------------------------------ Dated this the 16th day of February, 2022

JUDGMENT Petitioner had challenged an assessment order for the assessment year 2017-18 before the 2nd respondent. While filing the appeal, petitioner had not paid the required court fee contemplated under Section 76 of the Court Fees and Suit Valuation Act. Notice was issued to the petitioner on 06.01.2022 calling upon him to pay the balance court fee along with the Kerala Legal Benefit Fund within seven days. Since the petitioner failed to adhere to the demand of payment of the court fee as well as the payment to the Legal Benefit Fund, the appellate authority dismissed the appeal noticing the defect by order dated 31.01.2022. 2. Smt.S.K.Devi, learned Counsel for the petitioner submits that the petitioner was not given any intimation prior to the dismissal of the appeal for defect, and that the petitioner was ready to pay the amount.

Smt.M.M.Jasmine, learned Government Pleader on the other hand submitted that sufficient notice was issued to the WP(C) NO. 5186 OF 2022 3 petitioner including notice dated 06.01.2022 and thereafter the impugned order was issued only on 31.01.2022. Even till the said date, petitioner had not come forward to pay the amount.

I have considered the contentions raised.

There is no dispute to the fact that petitioner was given time to cure the defects as intimated by notice dated 06.01.2022, and there was a consequent failure. There is a clear default on the part of the petitioner to pay the balance court fee and contribution to legal benefit fund. However, having regard to the fact that in matters where time periods prescribed by the Statutes, have been extended by the Supreme Court till 28.02.2022, I am of the view that this is a fit case where extra ordinary juri iction can be utilized to extend to the petitioner an opportunity to cure the defects.

Petitioner has offered to cure the defects immediately if an opportunity is granted. Granting an opportunity to obtain an order on merits must be the lookout of courts and not to reject cases on technicalities or defects. Accordingly, the order Ext.P3 shall stand set aside on condition that petitioner pays the required court fee and legal benefit fund on or before 28.02.2022. If the balance amount is paid by that day, the appeal shall stand restored back to file.

WP(C) NO. 5186 OF 2022 4 The appellate authority shall consider the same and pass appropriate orders in accordance with law. On the other hand if the petitioner fails to pay the balance amount of court fee by the prescribed date, the appeal shall stand automatically dismissed. BECHU KURIAN THOMAS

JUDGE jm/

WP(C) NO. 5186 OF 2022 5 APPENDIX OF WP(C) 5186/2022 PETITIONER EXHIBITS Exhibit P1OF THE ASSESSMENT ORDER NO. 32150685306/2017-18(KGST) DATED 26/11/2021 ISSUED BY THE 1ST RESPONDENT. Exhibit P2OF THE APPEAL DATED 17/12/2021. Exhibit P3OF THE ORDER DATED 31/01/2022 IN KVATA 686/2021 ISSUED BY THE 2ND RESPONDENT.