IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER MONDAY, THE 24TH NOVEMBER 2008 / 3RD AGRAHAYANA 1930 WA.No. 2251 of 2008 --------------------- AGAINST THE JUDGEMENT IN WPC.29071/2008 Dated 04/11/2008 .................... APPELLANT/PETITIONER: ----------------------------------- K.E.MAJEED, (FORMERLY PROPRIETOR UDAYA TRADING COMPANY), KANJIRAKKATTU, ADOOPARAMBU, MUVATTUPUZHA. BY ADV. SRI.VIJAYAN. K.U. SRI.K.N.SREEKUMARAN RESPONDENTS/RESPONDENTS: ---------------------------------------------- 1. ASSISTANT COMMISSIONER SPECIAL CIRCLE-II, ERNAKULAM PIN 682 015. 2. DEPUTY COMMISSIONER (APPEALS) COMMERCIAL TAXES, ERNAKULAM PIN 682 015. 3. SALES TAX APPELLATE TRIBUNAL ERNAKULAM, REPRESENTED BY ITS SECRETARY COMMERCIAL TAXES COMPLEX, KOCHI 682 015. 4. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, TAXES DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY SENIOR GOVERNMENT PLEADER, SRI.MUHAMMED REFIQ. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 24/11/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L.DATTU, C.J. & A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No. 2251 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of November, 2008 JUDGMENT H.L.DATTU, C.J. This writ appeal is directed against the orders passed by a learned Single Judge in WP(C) No.29071 of 2008 dated 04.11.08. By the impugned order, the learned Single Judge has interfered with the orders passed by the Tribunal (Exts.P9 and P10), rejecting the application filed for condonation of delay, and, has further directed the appellant herein to deposit a sum of Rs.25 lakhs within two weeks from the date of the order. If such deposit is made, the learned Judge has directed the Tribunal to decide the lis on merits. The beneficial order so passed, in our view, ought not to have been questioned by the petitioner in this appeal. This was brought to the notice of the learned counsel appearing for the appellant, but the counsel persisted in arguing the matter. We failed to understand the logic. Be that as it may. 2. Questioning the correctness or otherwise of the orders passed by the first appellate authority for the assessment year 1989-90, the assessee has preferred second appeal before the Sales Tax Appellate Tribunal, Ernakulam. Since there was a delay in filing the appeal, the appellant had also filed an application to condone the delay for nearly 15 years from the date of the order passed by the first appellant authority. In the application WA No. 2251 of 2008 -:2:- for condonation of delay, the appellant, at paragraph 2 of the affidavit, had stated as under: “2) Grounds and facts stated in the accompanying appeal may be treated as part of this affidavit also. The delay was neither willful nor the result of any latches on the part of the appellant. Simultaneous demands of stupendous nature by way of additions and imposition of penalty for the 3 years (1988-89 to 1990-91) were so huge at the clearance of dues was found practically impossible by any stretch of imagination. As there was not even the slightest possibility of clearance of such a stupendous demand, the orders dismissing appeals were not proceeded with. I have been suffering much social ostracism consequent on declaration of insolvency by the Sub-Court, Muvattupuzha in I.P.No.2/1993. Schedule properties in the said IP were attached and sold by the Revenue divisional Officer, Muvattupuzha. Much heart-burns and miseries ensued. Relationships continued to be marred. It is at this juncture that the Honourable Finance Minister of Kerala made a proposal of an amnesty scheme in the Finance Bill 2008. The proposed amendment in Section 23 B to the KGST Act, 1963, if adopted by the Legislature can substantially reduce my liabilities for all the 3 years by way of tax, surcharge, penalty and WA No. 2251 of 2008 -:3:- interest. Some of my relatives, who can read my mind, are advising me for an attempt to pay off the dues with their help. It is in this context that the filings of statutory appeals before this Honourable Tribunal become important. If demands are lawfully reduced, I may be in a position to discharge the liabilities with the assistance from my near relatives. Finding that applications under the amnesty scheme had to be filed on or before 30.06.08, I made a representation before the Honourable Finance Minister on 12.06.08. As the request has been granted by extending the time up to 30.09.08, I am hopeful of availing the benefits conferred u/s.23 B, if the liabilities are lawfully reduced. In the circumstances, it is most respectfully submitted that the Honourable Appellate Tribunal may be pleased to condone delay of 5307 days and allow the accompanying application to the effect.” 3. The Tribunal has rejected the application for condonation of delay on the ground, that, the explanation offered by the petitioner in approaching the Tribunal, nearly 15 years after the date of passing of the order by the first appellate authority, is fully unsatisfactory. Further, the Tribunal has observed that, the appeal filed by the appellant is defective for the reason that the assessee had not produced the certified copy of the orders passed by WA No. 2251 of 2008 -:4:- the first appellate authority. 4. The learned Single Judge, may be taking a very sympathetic view of the entire matter, has permitted the petitioner to deposit Rs.25 lakhs towards the liability of the petitioner under the provisions of the Kerala General Sales Tax Act, and, has further directed the Tribunal to decide the appeal on merits, after such deposit is made. 5. In our view, the learned Single Judge was not justified in condoning the delay in filing the second appeal before the Tribunal, nearly after 15 years from the date of the order passed by the first appellate authority. The Tribunal taking that into consideration, in our opinion, had rightly rejected the application filed by the petitioner and consequently the appeal also. The learned Single Judge, without appreciating that aspect of the matter and on mere sympathies, has proceeded to grant partial relief to the petitioner. 6. A Writ Court is a court of equity and can exercise its extraordinary jurisdiction. But at the same time, for exercising that jurisdiction, this Court is expected to assign reasons. In the instant case, it is the admitted fact, that, there is a delay of 15 years in filing the appeal. The appellant had stated the reasons in the affidavit filed along with the application. A perusal of the reasons assigned by him, can never be called as “satisfactory explanation” in WA No. 2251 of 2008 -:5:- approaching the court belatedly after nearly 15 years from the date of passing of the order by the first appellate authority. This aspect of the matter ought to have been kept in view by the learned Single Judge before granting any relief to the appellant. In that view of the matter, we set aside the entire orders passed by the learned Single Judge, and confirm the order passed by the Tribunal, though it is an appeal filed by the petitioner in the writ petition. Ordered accordingly. (H.L.DATTU) CHIEF JUSTICE (A.K.BASHEER) JUDGE ttb/dk.