IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 23RD FEBRUARY 2011 / 4TH PHALGUNA 1932 WP(C).No. 4240 of 2011(D) ------------------------------------ PETITIONER(S): -------------------------- CHOICE POLYMERS,PANCODE,VADAVUCODE, REPRESENTED BY ITS MANAGING DIRECTOR SRI.M.P.SUNNY. BY ADVS. SRI.S.ANIL KUMAR (TRIVANDRUM) SRI.K.S.HARIHARAN NAIR RESPONDENT(S): -------------------------- 1. STATE OF KERALA,REP.BY THE INSEPECTING ASSISTANT COMMISSIONER,COMMERCIAL TAXES, MUVATTUPUZHA-686661. 2. THE ADDL.SALES TAX OFFICER-II,2ND CIRCLE PERUMBAVOOR-683542. 3. THE DY.COMMISSIONER(APPEALS),COMMERCIAL TAXES,ERNAKULAM-682015. 4. THE KERALA SALES TAX APPELLATE TRIBUNAL, ERNAKULAM-682015. BY GOVT. PLEADER SRI.V.K.SHAMSUDHEEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss C.K.ABDUL REHIM, J. ------------------------------- W.P.(C).No. 4240 of 2011 ------------------------------- Dated this the 23rd day of February, 2011. J U D G M E N T Challenge is against Ext.P6 order issued by the fourth respondent Tribunal condoning delay caused on the part of the State in filing second appeals with respect to the assessment of the years 1998-99 to 2001-02. 2. Assessment with respect to the above said years were completed against the petitioner and the petitioner had challenged those assessments before the first appellate authority. Through Ext.P1 order, the first appellate authority had allowed the appeals to a considerable extent, holding that the petitioner is entitled for exemption from payment of tax on the basis of SRO 1729/93 and also on the basis of the specific order of exemption obtained. Aggrieved by Ext.P1 order of the first appellate authority, the State had filed further appeals before the fourth respondent Tribunal, as evidenced from Ext.P2 series. The appeals were filed along with petitions seeking condonation of delay, as per Ext.P3 2 W.P.(C).No. 4240 of 2011 series. The petitioner herein filed objections to the delay condonation applications. Through Ext.P6 common order, the delay was condoned. 3. The petitioner is challenging Ext.P6 on the premise that the Tribunal went highly erred in condoning the delay, since there was no proper explanation offered from the side of the State with respect to cause of the delay. Contention of the petitioner is that, there was total erroneous exercise of jurisdiction vested on the Tribunal and the discretionary power in condoning the delay was not exercised in a legal and proper manner. 4. Learned counsel for the petitioner had drawn my attention to the affidavits filed by the State in support of the delay condonation applications. The relevant portion of the affidavit is extracted below :- “The disputed assessment order was completed on exparte and the Appellate authority modified the above order by verifying the books of accounts and SSI exemption certificate from Dist.Industries Centre, Ernakulam subsequently produced. But in the appellate order the appellate authority has not given any direction to produce the books of accounts before the assessing authority and also the dealer has failed 3 W.P.(C).No. 4240 of 2011 to produce the above records before 13.11.09. The dealer filed the documents only on 13.11.09, as a result of the notice from the Commercial Tax Officer, 2nd Circle, Perumbavoor. Due to this reasons occurred the delay.” 5. In the objections filed by the petitioner it was specifically contended that there was no direction in the appellate order to produce the books of accounts or records before the assessing authority and the order of the first appellate authority was specific and unambiguous. The assessments were ordered to be modified as per the directions issued. Therefore, there was no necessity to produce any books of accounts or any other records for issuing the modified assessments. Hence it is evident that no cogent reasoning was pleaded for condonation of the delay, is the contention. 6. While considering the matter, I notice that the cause of delay mentioned in the affidavits, which is extracted as above, is totally irrelevant and non- explanatory. On the other hand, what is stated is something pertaining to the merits of the order of the first appellate 4 W.P.(C).No. 4240 of 2011 authority. Therefore, I am of the view that the delay caused in filing the second appeal were not properly explained. However, it is noticed that the fourth respondent Tribunal had observed that the petitioner will not be prejudiced by allowing the applications filed for condonation of delay and therefore the applications were allowable. 7. Learned Government Pleader appearing on behalf of the respondents contended that the condonation of delay is a matter coming within the discretionary power of the appellate authority. Ofcourse, to a certain extent it is agreeable that whether to condone the delay or not, is a matter of discretion vested upon the statutory authority. But that discretion should be exercised only when a reasonable explanation is forthcoming, from the side of the party who is seeking condonation of delay. In the case at hand, the contents of the affidavit filed in support of the applications is totally lacking of any cogent or reasonable cause explained with respect to the delay caused. 8. Further, learned Government Pleader contended 5 W.P.(C).No. 4240 of 2011 that, an order condoning delay is not a matter for challenge before this Court and it is not justified on the part of this Court in quashing such an order in exercise of power under Article 226 of Constitution of India. I could not agree with such contention, in view of the fact that there is no further statutory remedy provided against such order and the petitioner is justified to assail such an order in a writ petition when there is total erroneous exercise of jurisdiction vested on the appellate authority. 9. At any rate, by condoning the delay inspite of objections raised, it could not be said that the petitioner will not be put to any prejudice, as found in Ext.P6. Definitely, the result of the order condoning delay will affect rights of the petitioner and the petitioner is always at liberty to challenge such a decision. 10. In view of the above discussions, I am of the considered opinion that Ext.P6 order condoning delay, is unsustainable in the eye of law. However, I am of the opinion that interest of justice will be served if the appellant 6 W.P.(C).No. 4240 of 2011 State is given an opportunity to file a proper explanation for the cause of delay through proper affidavit filed in support of the applications. 11. Therefore, the writ petition is allowed and Ext.P6 is hereby quashed. The fourth respondent Tribunal is directed to restore the applications in question, if the respondent/State files proper affidavits in support of such petitions offering any proper and cogent reasons for the cause of delay, within 2 weeks from the date of receipt of a copy of this judgment. In such case, those applications should be considered afresh and disposed of, after affording opportunity to the petitioner to file fresh objections. Needless to say that, the appeals shall be entertained only if proper affidavits are filed and only if the delay is condoned, otherwise it should be dismissed as belated by the period of limitation prescribed. C.K.ABDUL REHIM, Judge ami/