IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 24TH MAY 2010 / 3RD JYAISHTA 1932 WP(C).No. 12506 of 2010(K) -------------------------- PETITIONER: --------------- N.S.SUNIL KUMAR, ANIKKATTU HOUSE, POOVARANY, KOTTAYAM DISTRICT. BY ADV. SRI.V.P.SUKUMAR SRI.JAIRAM.V.MENON RESPONDENTS: --------------- 1. THE COMMERCIAL TAX OFFICER, PALA. 2. THE DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES, KOTTAYAM. 3. THE SALES TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH, KOTTAYAM. BY GOVERNMENT PLEADER ADV. MR.C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C) No. 12506 OF 2010 ......................................................................... Dated this the 24th May, 2010 J U D G M E N T Being aggrieved of Exts. P1 to P5 assessment orders for the different assessment years 1995-96 to 1999-2000, the petitioner had preferred appeals before the second respondent; which however did not turn to be fruitful, as borne by Ext. P6 order dated 19.01.2009. This made the petitioner to prefer further appeals (Exts.P7 to P11 ) before the 3rd respondent, along with Exts. P12(a) to P12(e) applications for condoning the delay, stated as preferred along with Ext.P13 medical certificate. After considering the applications for condoning the delay in the light of contents of the medical certificate, Ext.P14 order was passed by the Tribunal declining interference, holding that no explanation was there, as to what prevented the petitioner from producing the books of accounts before the assessing authority after receipt of notice, simultaneously observing that the contents of the medical certificate produced did not satisfactorily W.P.(C) No. 12506 OF 2010 2 explain any serious illness preventing the party from filing the Second Appeals before the Tribunal on time. Accordingly, the medical certificate was refused to be relied on, more so, since the medical certificate did not state that the petitioner was 'paralysed' or 'bed ridden' or that he was unable to move. Reference is also made to the course and conduct of the petitioner, stating that he did not choose to appear before the assessing authority, despite receipt of notice. In the said circumstances, the Tribunal refused to condone the delay of 148 days in preferring the appeals and as a natural consequence, the appeals were dismissed as per the order passed on the very same day, as borne by Ext. P15, which in turn forms the subject matter of challenge in this Writ Petition. 2. The learned Counsel for the petitioner submits that the course pursued by the third respondent is not correct or sustainable and that the issue has been dealt with quite casually. 3. Heard the learned Government Pleader as well, who submits on the basis of the materials on record that sufficient opportunity has already been extended to the petitioner and W.P.(C) No. 12506 OF 2010 3 that no further leniency is liable to be made under any circumstances. 4. However, this Court finds that the delay was sought to be explained by the petitioner before the third respondent by filing necessary interlocutory application, supported by a 'medical certificate'. There is no case that the 'medical certificate' was bogus or fabricated in any manner and it is not seen that the same was referred to the person, who issued the certificate for cross-verification and to ascertain the credibility of the same. Similarly, undue reliance has been placed on the certificate, to hold that the proceedings could have been entertained, only if the petitioner was actually paralysed or bed ridden. There is no case for the Department that the attempt of the petitioner was to protract things, so as to evade payment or to cause undue loss or hardship to the opposite side. The manner in which a petition to condone the delay has to be appreciated, has been explained by the Apex Court as per the decision reported in N. Balakrishnan vs. M. Krishnamurthy [(1998) 7 SCC 123], holding that it is not the extent of delay that is to be W.P.(C) No. 12506 OF 2010 4 considered, but whether it is a conscious exercise to cause loss/prejudice the other side. Viewed in the above circumstance, it is none other than the petitioner who is to be adversely affected, because of the delay of 148 days in having approached the third respondent/Tribunal, as it was the petitioner himself who had to face the coercive steps under the Revenue Recovery Act, for his default. 5. This Court finds that the matter ought to have been considered and decided on merits and that the delay on the part of the petitioner could have been condoned on terms. Considering the facts and circumstances this Court finds that the interest of justice would be met, if the delay is condoned subject to the condition that the petitioner pays a cost of Rs. 5000/-(Rupees five thousand only) within ten days from the date of receipt of a copy of the judgment. On satisfying the payment of cost as above, the delay will stand condoned and the third respondent/Tribunal shall consider the interlocutory application, if any, for stay and appropriate orders shall be passed therein, in accordance with law, after giving an opportunity of hearing to the W.P.(C) No. 12506 OF 2010 5 petitioner as expeditiously as possible, at any rate, within a period of six weeks from the date of receipt of a copy of the judgment. It is made clear that the petitioner is at liberty to file a fresh petition, if so necessitated, within one week from the date of receipt of a copy of this judgment, on which event, the same shall be considered by the third respondent and appropriate orders shall be passed in terms of the verdict as above. Till such orders are passed, all recovery proceedings stated as being pursued against the petitioner shall be kept in abeyance, for the time being. The Writ Petition is disposed of . P.R. RAMACHANDRA MENON, JUDGE. lk