Shaji.N.M vs. The State Tax Officer - Kerala High Court, 12 July 2019

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI FRIDAY, THE 12TH DAY OF JULY 2019 / 21ST ASHADHA, 1941 WP(C).No.19036 of 2019 PETITIONER/S: SHAJI.N.M, AGED 54 YEARS, PROPRIETOR, M/S. NOORNAL HARDWARES, THORPRAMKUDY. BY ADVS. SRI.R.MURALEEDHARAN SRI.ANTONY JONES RESPONDENT/S: 1 THE STATE TAX OFFICER, (FORMERLY COMMERCIAL TAX OFFICER), CHERUTHONI, IDUKKI DISTRICT-685 602. 2 THE ASSISTANT COMMISSIONER (APPEALS), (FORMERLY ASSISTANT COMMISSIONER (APPEALS), KATTAPPANA), STATE GOODS AND SERVICES TAX DEPARTMENT, KOTTAYAM-686 002. 3 THE INSPECTING ASSISTANT COMMISSIONER, STATE GOODS AND SERVICES TAX DEPARTMENT, (FORMERLY COMMERCIAL TAXES DEPARTMENT), IDUKKI AT KATTAPPANA-685 515. OTHER PRESENT: GP.SMT. M.M. JASMIN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT Heard Sri.R.Muraleedharan, learned counsel for the petitioner and Smt.M.M.Jasmine, learned Government Pleader for respondents. The petitioner aggrieved by the assessment order dated 16.01.2017 for the Assessment Year 2011-12 and 2012-13 filed appeals in Exts.P3 and P4. The petitioner did not pay the requisite court fee along with the memorandum in Exts.P3 and P4. Assistant Commissioner (Appeals)/2nd respondent through Exts.P5 and P6 rejected the appeals. The order rejecting appeals reads as follows: “The appellant

Sri.M.M.Shaji, Nooranal Hardwares, Thopramkudy filed appeal against the assessment order of the Commercial Tax Officer, Cheruthoni passed U/s 25(1) of the KVAT Act issued vide proceedings

dated

16.01.

2017 demanding tax Rs.4,68,950/- for the Assessment

Year

of 2011-12. Verification

of the appeal memorandum it is seen that the appellant had not filed the KLBF along with appeal application.

Hence notice read as above has been issued to the appellant through authorized representative, inviting to file the same within 7 days. Thought the notice was duly served there was no response at all.

Therefore the appeal cannot be entertained before the eyes of law as such the appeal

stands rejected.”

Hence this writ petition.

At the outset, the counsel for petitioner submits that the petitioner is prepared to comply with the deposit of requisite court fee on Exts.P3 and P4 provided this Court considers and grants reasonable time from today. To stay clear from a finding recorded in Ext.P5 that in spite of invitation to comply with the defect, there is no response from the petitioner, it is stated that the petitioner is unaware of such intimation or communication. The Government Pleader submits that this is a case of return of appeal. Petitioner can certainly represent after complying with the defect in paying the court fee if properly addressed.

Heard the learned counsel appearing for the parties and perused the records.

Appeal is an effective remedy under KVAT Act. The petitioner is prepared to comply with the requirement of paying the requisite court fee instead of relegating the petitioner to again file an application for the above said purpose before the 2nd respondent. Keeping in view the stage of the matter, this Court is pursuaded to dispose of the writ petition by this order: a) Petitioner by enclosing a copy of this Order re-presents the appeal after paying the requisite court fee within two weeks from today. The 2nd respondent entertains the appeal, if the appeal is otherwise in order and dispose of accordingly. S.V.BHATTI DG JUDGE

APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1OF THE ASSESSMENT ORDER DATED 16.1.2017 PASSED BY THE 1ST RESPONDENT AGAINST THE PETITIONER FOR THE YEAR 2011-12. EXHIBIT P2OF THE ASSESSMENT ORDER DATED 16.1.2017 PASSED BY THE 1ST RESPONDENT AGAINST THE PETITIONER FOR THE YEAR 2012-13 EXHIBIT P3OF THE APPEAL DATED 06.06.2017 FILED BY THE PETITIONER AGAINST EXT.P1 ASSESSMENT ORDER BEFORE THE 2ND RESPONDENT. EXHIBIT P4OF THE APPEAL DATED 06.06.2017 FILED BY THE PETITIONER AGAINST EXT.P2 ASSESSMENT ORDER BEFORE THE 2ND RESPONDENT. EXHIBIT P5OF THE APPELLATE ORDER DATED 29.01.2018 PASSED BY THE 2ND RESPONDENT REJECTING EXT. P3 APPEAL. EXHIBIT P6OF THE APPELLATE ORDER DATED 29.01.2018 PASSED BY THE 2ND RESPONDENT REJECTING EXT. P4 APPEAL. EXHIBIT P7OF THE DEMAND NOTICE DATED 15.09.2017 ISSUED BY THE 3RD RESPONDENT UNDER THE REVENUE RECOVERY ACT RELATING TO EXT.P1. EXHIBIT P8OF THE DEMAND NOTICE DATED 15.09.2017 ISSUED BY THE 3RD RESPONDENT UNDER THE REVENUE RECOVERY ACT RELATING TO EXT. P2. EXHIBIT P9OF THE JUDGMENT IN W.P.(C) NO. 13700/2016 DATED 06.04.2016 OF THE HON'BLE HIGH COURT OF KERALA.