IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 12TH OCTOBER 2010 / 20TH ASWINA 1932 WP(C).No. 25992 of 2010(Y) -------------------------- PETITIONER(S): --------------- ST.ANTONYS TIMBER DEPOT, CHEVOOR, TRICHUR, A REGISTERED PARTNERSHIP FIRM, REPRESENTED BY ITS MANAGING PARTNER,SRI.BABU JOHN. BY ADV. SRI.E.P.GOVINDAN SMT.G.DEEPA RESPONDENT(S): --------------- 1. THE COMMERCIAL TAX OFFICER, SECOND CIRCLE, TRICHUR. 2. THE APPELLATE ASST.COMMISSIONER-II, COMMERCIAL TAXES, PALAKKAD. 3. THE APPELLATE ASST.COMMISSIONER, COMMERCIAL TAXES, TRICHUR. 4. THE KERALA AGRICULTURAL INCOME TAX AND SALES TAX APPELLATE TRIBUNAL ADDITIONAL BENCH, PALAKKAD. 5. THE DY.COMMISSIONER (A) COMMERCIAL TAXES, ERNAKULAM. 6. THE STATE OF KERALA, REPRESETNED BY THE SECRETARY, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM. SR. GOVT. PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.25992 of 2010 ------------------------------------------- Dated this the 12th day of October, 2010 J U D G M E N T ---------------------- The petitioner is a registered dealer under the provisions of the Kerala General Sales Tax Act (KGST Act) as well as the Kerala Value Added Tax Act, 2003 (KVAT Act). With respect to the assessment year 2004-05, best judgment assessment was completed against the petitioner as per Ext.P2, rejecting returns and Books of Accounts submitted, on the basis that, penalty under Section 29(A)(4) was imposed with respect to certain transports of timber which were intercepted by the Intelligence Wing. 2. According to the petitioner the assessment was finalised by rejecting request made by the petitioner to keep in abeyance the matter till the disposal of the appeal filed by him against the order imposing penalty. However, it is stated that the appeal filed against the penalty order was allowed through Ext.P3, on 17.11.2008. Aggrieved by Ext.P2 order of assessment the petitioner had preferred statutory appeal before the 5th respondent as per Ext.P4. The appeal was filed along with Ext.P5 petition seeking condonation of delay supported by medical certificates, copy of which are marked as Ext.P6 and P6(a) in this writ petition. W.P.(C).25992/10 -2- 3. It is stated that Ext.P4 appeal along with its accompanying applications were originally filed before the 5th respondent. But the same was transferred to the 2nd respondent without any intimation to the petitioner. The 2nd respondent had rejected the appeal on the ground that nobody appeared when the delay condonation application was posted for hearing on 12.12.2008. 4. According to the petitioner there was no proper notice served regarding posting of the matter before the 2nd respondent. However, aggrieved by Ext.P7 the petitioner had preferred further appeal before the 4th respondent Tribunal under Section 9 of the KGST Act. But the Tribunal had rejected the appeal through Ext.P1 order, as not maintainable, following the dictum laid by this court in the decision reported in Solar Cashew Vs. State of Kerala ((2009) 2 KLT 486). The petitioner is challenging Ext.P1 order on the ground that an order passed by the first appellate authority rejecting the appeal, consequent to dismissal of delay condonation application is an order passed under Section 34(3) of the Act and the same is appealable under Section 39 of the Act. 5. The petitioner relies on a decision of this court in Andhra Steel Corporation Vs. State of Kerala (67 STC 348) wherein it is held that dismissal of an appeal by the first appellate authority in limine, for non-payment of admitted tax is W.P.(C).25992/10 -3- an order passed under Section 34(3) of the KGST Act and since it is an order resulting in confirmation of the assessment, an appeal under Section 39 is maintainable. But in the case at hand the first appeal is rejected on the ground that delay in filing the appeal was not condoned. The question whether a further appeal is maintainable under Section 39 in such cases stands settled through a direct decision in Solar Cashew's case (cited supra). Therefore I am of the opinion that rejection of the appeal by the 4th respondent Tribunal was legal and perfect. 6. Under such circumstances the challenge against Ext.P1 order on the ground raised in this writ petition is not sustainable. However, on the principles of equity, this court is of the opinion that the petitioner shall not be rendered without any remedy to challenge Ext.P7 order of the first appellate authority. It is evident that the 2nd respondent had rejected the first appeal on the ground that the said authority had declined to condone the delay. But it is pertinent to note that the 2nd respondent has not even considered merits of the delay condonation petition. Even though in Ext.P7 it is stated that the petitioner has not produced any medical certificates, learned counsel for the petitioner asserts that Ext.P6 and P6(a) were produced along with petition seeking condonation of delay. On a perusal of Ext.P6 and P6(a) it is revealed that the petitioner was undergoing treatment during the relevant period for 'Lumbar W.P.(C).25992/10 -4- inter vertebral Disc prolapse' and that he was advised to avoid journeys. Therefore I am of the view that the delay of 105 days caused in filing the appeal can be condoned. 7. Under such circumstances I am of the view that it is only just and proper in the interest of justice to direct the 2nd respondent to consider and dispose of the appeal after affording an opportunity of personal hearing to the petitioner. 8. In the result the writ petition is disposed of directing the 2nd respondent to restore Ext.P4 appeal on its files and to dispose of the same after affording an opportunity of hearing to the petitioner, at the earliest, at any rate, within a period of six weeks from the date of receipt of a copy of this judgment. C.K.ABDUL REHIM, JUDGE. okb