IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 23RD DECEMBER 2009 / 2ND POUSHA 1931 WP(C).No. 37614 of 2009(V) --------------------------------------- PETITIONER(S): ---------------------- HOTEL CHITHIRA, CULLEN ROAD, ALAPPUZHA, REPRESENTED BY ITS GENERAL MANAGER A.R. AJITHKUMAR, S/O. LATE K. RAJAPPAN PILLAI, AGED 49 YEARS, THODANKULANGARA, ALAPPUZHA. BY MR.DR.K.B.MOHAMEDKUTTY, SENIOR ADVOCATE, ADV. MR.K.M.FIROZ. RESPONDENT(S): ------------------------ 1. THE INTELLINGENCE OFFICER, COMMERCIAL TAXES, ALAPPUZHA. 2. THE DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES, KOTTAYAM. 3. THE INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAXES, ALAPPUZHA. 4. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. R1 TO R4 BY GOVERNMENT PLEADER MR.V.K. SHAMSUDHEEN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 3/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. C.K.ABDUL REHIM, J. ------------------------------ W.P.(C).No.37614 OF 2009 ------------------------------ Dated this the 23rd day of December, 2009 J U D G M E N T ---------------------- 1. Petitioner was imposed with penalty under Section 45A of the Kerala General Sales Tax Act, 1963 (KGST Act), through Ext.P1 order of the 1st respondent, for the year 2005-06. The petitioner had preferred statutory appeal against Ext.P1 before the 2nd respondent. The 2nd respondent had posted the appeal for hearing on 31.8.2009 and thereafter on 30.9.2009. The authorised representative of the petitioner appeared and argued the appeal on merits. Argument note was also submitted to the 2nd respondent. But through Ext.P2 order the 2nd respondent had dismissed the appeal for want of payment of additional court fee @ 5% on the disputed tax amount, as required under notification, SRO.226/02. It is stated in Ext.P2 that during the course of argument the 2nd respondent have pointed out about non-furnishing of additional court fee due towards the Kerala Legal Benefit Fund Scheme. But it was contended that the case being a revision proceedings against the order imposing penalty, the additional court fee is not liable to be paid. But in Ext.P2 the 2nd respondent observed that going by W.P.(C).37614/09-V 2 the decision in A.P. Ismail v. State of Kerala ((2006) 144 STC 476), the appellant is liable for payment of additional court fee as per SRO.226/02. 2. According to the appellants Ext.P2 order dismissing an appeal for want of payment of court fee, is not an order appealable under Section 39 of the Kerala General Sales Tax Act, 1963 (KGST Act) Act, since the dismissal is not an order under Section 34 of the Act. Further it is apprehended that the appellate Tribunal may not interfere in the second appeal if filed against Ext.P2 order, since the dismissal of the appeal is on the ground of non-payment of additional court fee. Learned counsel for the petitioner contended that the 2nd respondent went highly erred in dismissing the appeal for want of payment of amounts due to the KLBF. It is contended that at the most the non- payment of court fee can only be construed as a defect in filing of the appeal, which ought to have been put to notice of the appellant and the appellant should have been afforded with an opportunity to cure such defect. The rejection/dismissal of the appeal after hearing the matter in full on merits is highly irregular. Hence the petitioner seeks for a direction to the 2nd respondent to restore the appeal on payment of the required amount of additional court fee and for disposal of the same on merits. W.P.(C).37614/09-V 3 3. Having considered facts and circumstances of the case, I am of the opinion that there is merit in the contention of the petitioner that the 2nd respondent ought to have issued notice to the petitioner/appellant to cure the defect for want of payment of additional court fee, before rejecting the appeal. Since such an opportunity was not afforded to the petitioner, I am of the opinion that it is only just and proper to direct the 2nd respondent to afford the petitioner with such an opportunity. 4. Accordingly the writ petition is disposed of quashing Ext.P2 order. The 2nd respondent is directed to restore appeal in question. The petitioner is directed to cure the defect in the appeal by paying additional court fee required, within a period of one month from today. If the defects in the appeal is cured as directed above, the 2nd respondent shall consider the appeal on merits, after affording a further opportunity of hearing to the petitioner, and shall dispose of the same in accordance with law, as early as possible, at any rate within a period of one month thereafter. C.K.ABDUL REHIM, JUDGE. okb