IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 8TH NOVEMBER 2011 / 17TH KARTHIKA 1933 WP(C).No. 28637 of 2011(D) ------------------------------------ PETITIONER(S): ---------------------- MR.SHAIK MEHABOOB PROPRIETOR, M/S.S.B.TRADERS,IV/80F & 80 G,PALLIKAVALA, CHERANALOOR, 682 034, ERNAKULAM DISTRICT. BY ADV. SRI.TOMSON T.EMMANUEL RESPONDENT(S): ------------------------ 1. COMMERCIAL TAX OFFICER,IST CIRCLE, COMMERCIAL TAXES,KALAMASSERY 682 026. 2. DEPUTY COMMISSIONER, COMMERCIAL TAXES, SALES TAX COMPLEX, ERNAKULAM,COCHIN 682 015. 3. STATE OF KERALA,REPRESENTED BY SECRETARY TO GOVT.(TAXES),SECRETARIAT, THIRUVANANTHAPURAM 695 001. BY GOVT. PLEADER SMT. SHOBA ANNAMMA EAPEN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: STU WP(C).No. 28637 of 2011(D) APPENDIX PETITIONER(S) EXHIBITS : EXHIBIT P1 : TRUE COPY OF ANNUAL RETURN IN FORM NO.10 E-FILED ON 28/5/2010 BY THE PETITIONER FOR 2009-10 EXHIBIT P2 : TRUE COPY OF CLOSING STOCK INVENTORY AS ON 31/3/2010 IN FORM NO.54 DATED 31/7/2010 FILED BY THE PETITIONER BEFORE THE IST RESPONDENT. EXHIBIT P3 : TRUE COPY OF APPLICATION FOR CLAIMING REFUND IN FORM NO.21 CC DATED 31/7/2010, SUBMITTED BY THE PETITIONER , BEFORE BY THE IST RESPONDENT EXHIBIT P4 : TRUE COPY OF APPLICATION DATED 31/7/2010 FOR CONDONATION OF ONE MONTH DELAY , SUBMITTED BEFORE THE IST RESPONDENT,BY THE PETITIONER. EXHIBIT P5 : TRUE COPY OF CIRCULAR NO.16/2010 DATED 30/7/2010 ISSUED BY THE COMMISSIONER OF COMMERCIAL TAXES, THIRUVAHANTHAPURAM,IN EXTENDING THE TIME LIMIT FOR FILING ANNUAL RETURN AND ITS ENCLOSURES FOR 2009-10 EXHIBIT P6 : TRUE COPY OF PRE-PRINTED NOTICE NO.32071296374/11-12 DATED 6/8/2011, ISSUED TO THE PETITIONER BY THE IST RESPONDENT IN PROPOSING REJECTION OF EXT.P3 APPLICATION FOR THE CLAIM OF REFUND EXHIBIT P7 : TRUE COPY OF REPLY TO EXT.P6 NOTICE AND ALSO REQUESTING IST RESPONDENT TO FORWARD EXT.P4 REQUEST FOR CONDONATION OF DELAY TO 2ND RESPONDENT EXHIBIT P8 : TRUE COPY OF APPLICATION DATED 22/8/2011 FOR CONDONATION OF DELAY OF ONE MONTH, IN FILING EXT.P3 BEFORE THE IST RESPONDENT, SUBMITTED BEFORE THE 2ND RESPONDENT EXHIBIT P9 : TRUE COPY OF ORDER NO.32071296374 C/09-10 DATED 26/8/2011,ISSUED BY THE IST RESPONDENT TO THE PETITION IN REJECTING EXT.P3 FOR THE REASON OF DELAY OF 30 DAYS IN FILING REQUEST FOR REFUND WITHOUT STATING ANYTHING ABOUT EXT.P4. RESPONDENTS' EXHIBITS : NIL //TRUE COPY// P.A TO JUDGE. STU S.SIRI JAGAN, J. ================== W.P.(C).No. 28637 of 2011 ================== Dated this the 8th day of November, 2011 J U D G M E N T The petitioner's application for refund of excess tax paid under the Kerala Value Added Tax Act, by the petitioner has been rejected on the ground that it is belated. The petitioner's contention is that along with the refund application the petitioner had filed an application for condonation of delay before the 1st respondent. The 1st respondent was bound to forward the petition to condone delay to the 2nd respondent, who is, under law, vested with the power to condone delay in filing the refund application. According to the petitioner, without forwarding the application for condonation of delay in filing the refund application to the 2nd respondent, the 1st respondent has rejected the application on the ground of delay, by Ext.P9. The petitioner is challenging Ext.P9 order and seeking the following reliefs: “i) to issue a writ in the nature of certiorari or any other appropriate writ or order quashing Exhibit P9 order issued by the 1st respondent, U/r.47(A) of the Kerala Value Added Tax Rules, 2005; ii) to issue a writ in the nature of mandamus or any other appropriate writ or order directing the 2nd respondent to issue (sic) pass necessary orders in Ext.P8 application, without considering Ext.P9 order of the 1st respondent, within a time limit fixed by this Hon'ble court. iii) to issue a writ in the nature of mandamus or any other appropriate writ or order directing the st respondent to refund the excess input tax credit, along with interest accrued, if the delay in filing Ext.P3 is condoned by the 2nd respondent, within w.p.c.28637/11 - : 2 :- a time limit fixed by this Hon'ble court.” 2. The learned Government Pleader, on instructions, submits that the petitioner ought to have filed the application to condone delay before the 2nd respondent and he was made aware of this fact at the time of hearing of the refund application, despite which, the petitioner has not chosen to do so. Therefore, the learned Government Pleader argues in support of Ext.P9 order. 3. I have considered the rival contentions in detail. 4. I am of opinion that on receipt of a refund application along with a petition to condone delay, the 1st respondent ought to have forwarded the application for condonation of delay to the 2nd respondent, who is vested with the power to condone delay. It was not proper for the 1st respondent to reject the refund application merely on the ground that the petition to condone delay ought to have been filed before the 2nd respondent. In the above circumstances, I am of opinion that the matter should be considered by the 2nd respondent appropriately. To enable the 2nd respondent to consider the application to condone delay, Ext.P9 order is quashed. The 1st respondent is directed to forward the petition to condone delay filed by the petitioner to the 2nd respondent within two weeks from the date of receipt of a copy of this judgment. The 2nd respondent shall consider and pass w.p.c.28637/11 - : 3 :- orders on the same after affording an opportunity of being heard to the petitioner, as expeditiously as possible, at any rate, within one month from the date of receipt of the application from the 1st respondent. If the delay is condoned by the 2nd respondent, the 1st respondent shall consider and pass orders on the refund application within another one month from the date of receipt of the order from the 2nd respondent. The writ petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge