IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 20TH JULY 2011 / 29TH ASHADHA 1933 OP(C).No. 2123 of 2011(O) ---------------------- T.A.NO. 585/09 OF KERALA AGRL.INCOME TAX AND SALES TAX APPELLATE TRIBUNAL ADDL. BENCH, ERNAKULAM PETITIONER : -------------------- KAVERI VISWANATHAN, PROPRIETRIX, SRIVISHNU SALES CORPORATION, KAKKANAD, ERNAKULAM DISTRICT. BY ADVS. SRI.E.P.GOVINDAN SMT.G.DEEPA RESPONDENT(S): ------------------------- 1. THE COMMERCIAL TAX OFFICER, SECOND CIRCLE, KALAMASSERY, AT PALARIVATTOM - 682 017. 2. THE KERALA AGRL. INCOME & SALES TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH, ERNAKULAM - 682 015. 3. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, TAXES DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM - 695 001. R1 TO R3 BY GOVT. PLEADER SRI. T.K. SAJEEV. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 20/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- OP(C).No. 2123 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF ORDER DATED 29/4/2011 PASSED BY THE SECOND RESPONDENT IN TA NO. 585/09. EXT.P2 : COPY OF ASSESSMENT ORDER DATED 25/4/2005 PASSED BY THE FIRST RESPONDENT. EXT.P3 : COPY OF JUDGMENT DATED 25/8/2006 IN S.T.(REV) NO. 175/2004 OF THIS HONOURABLE COURT. EXT.P4 : COPY OF ORDER DATED 30/8/2007 IN T.A. NO. 507/2001 AND T.A. NO. 685/2001 PASSED BY THE SECOND RESPONDENT. EXT.P5 : COPY OF JUDGMENT DATED 3/6/2009 IN S.T.(REV) NO. 49 & 55 OF 2008 PASSED BY THIS HONOURABLE COURT. EXT.P6 : COPY OF APPELLATE ORDER DATED 14/3/2007 PASSED BY THE DY. COMMISSIONER (APPEALS), ERNAKULAM. EXT.P7 : COPY OF APPEAL MEMORANDUM DATED 16/9/2009 FILED BEFORE THE SECOND RESPONDENT. EXT.P8 : COPY OF DELAY PETITION ALONG WITH AFFIDAVIT FILED BEFORE THE SECOND RESPONDENT. RESPONDENT'S EXHIBITS - NIL //TRUE COPY// P.S. TO JUDGE Mn THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.2123 of 2011 -------------------------------------- Dated this the 20th day of July, 2011. JUDGMENT This Original Petition is in challenge of Ext.P1, order whereby the Kerala Agricultural Income Tax and Sales Tax Appellate Tribunal, Additional Bench, Ernakulam (for short, “the Tribunal”) has declined to condone the delay of 889 days in filing an appeal under Section 39 of the Kerala General Sales Tax Act (for short, “the Act”) and consequently dismissing that appeal itself. Petitioner was assessed by the assessing authority as per Ext.P2, order dated 25.04.2005 for payment of tax for feeding bottle. According to the petitioner, her liability was only to pay tax at the rate of 4% while the assessing authority fixed it as 12%. Petitioner challenged that order before the appellate authority under Section 34 of the Act. But, the appeal was dismissed as per Ext.P6, order dated 14.03.2007. With a delay of 889 days petitioner filed Ext.P7, appeal under Section 39 of the Act before the Tribunal with request to condone the delay of 889 days. In the affidavit in support of that request petitioner stated that she is permanently staying at Chennai while her business is being managed by her employees. On receipt of Ext.P6, order of the appellate authority she entrusted the matter to her manager to file the appeal but it turned out that and no appeal was preferred. According to the petitioner, it is possible that the appeal under Section 39(1) of the Act was not preferred since the decisions on the point at that time was not in favour of petitioner. Later by Ext.P5, judgment the Division OP(C) No.2123/2011 2 Bench of this Court in S.T.(Rev.) Nos.40 and 55 of 2008 held that in such situation liability of the assessee is to pay tax at the rate of 8%. Thereon petitioner filed Ext.P7, appeal under Section 39(1) of the Act and requested to condone the delay. It is contended by learned counsel that these circumstances are sufficient explanation to condone the delay, there was no willful delay and the Tribunal ought to have condoned the delay and entertained the appeal. In M/s.Vasu and Company v. State of Kerala ((2002) 10 KTR 30 (Kerala) where according to the learned counsel more than one thousand days delay was involved, was condoned. It is also pointed out by the learned counsel that in view of the decision of the Division Bench of this Court in Balakrishnan Nair v. State of Kerala (2007 (2) KLT S.N.16 – Case No.24) and Solar Cashew v. State of Kerala (2009 (2) KLT 486) no revision would lie from the decision of the Tribunal and hence the said order is liable to be challenged under Article 227 of the Constitution. 2. Learned Government Pleader while not disputing maintainability of the petition under Article 227 of the Constitution contended that there is no reason to interfere with the impugned order in that the Tribunal was right in holding that the delay has not been explained. 3. In Solar Cashew v. State of Kerala (supra) the Division Bench held that when the appeal under Section 39(1) of the Act is rejected by the Tribunal (in that case for non-payment of the admitted tax) such order is not OP(C) No.2123/2011 3 amenable to a revision though it could be challenged invoking the power under Article 227 of the Constitution. That situation does not arise in this case since it is not a rejection of appeal memorandum for non-payment of admitted tax but rejection of request for condonation of delay and consequent dismissal of the the appeal. But the decision in Balakrishnan Nair v. State of Kerala is to the point. In that case appeals were dismissed consequent to the dismissal of the applications to condone the delay. It was held by the Division Bench that order declining to entertain the appeal by the Tribunal is not revisable though it is open to challenge the order probably in a Writ Petition. In view of that decision I am bound to hold that this Original Petition is maintainable. 4. Now, on to the question whether delay ought to have been condoned even under Section 5 of the Limitation Act there must be satisfactory explanation for the delay and what is satisfactory in one case need not be satisfactory in the other case. Therefore, mere reason that in one case delay of one thousand days was condoned is not a reason to condone the delay of 889 days in this case. That should depend on the facts and circumstances of the case. 5. I must bear in mind that a party who has a case to be argued before the court will not normally refrain from preferring the appeal or other proceeding for no reason whatsoever. Here, petitioner challenged the order of the assessing authority before the appellate authority on the ground that she is OP(C) No.2123/2011 4 not liable to pay tax at the rate of 12%. The appellate authority dismissed her appeal as per Ext.P6, order. But, there was delay in filing the appeal before the Tribunal under Section 39(1) of the Act. It is in the meantime by Ext.P5, judgment the Division Bench of this Court held that in such situation liability of the assessee is to pay tax at the rate of 8% per annum. It is pointed out by the learned counsel that probably the manager of the petitioner did not choose to file an appeal before the Tribunal in view of the position of law which existed during that time as per which petitioner had to pay tax at the rate of 12%. In these circumstances I am inclined to think that the delay has been explained and the rejection of the request to condone the delay is not proper. Resultantly this Original Petition is allowed in the following lines: i. Ext.P1, order refusing to condone the delay and consequently dismissing the appeal (T.A.No.585 of 2009) is set aside. ii. The delay in filing that appeal will stand condoned and the appeal is remitted to the Tribunal for decision in accordance with law. THOMAS P.JOSEPH, Judge. cks