IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 1ST DECEMBER 2010 / 10TH AGRAHAYANA 1932 WP(C).No. 18807 of 2010(A) -------------------------- PETITIONER: ----------------- T.E. MUSTHAFA, MUSTHAFA TRADERS, ARECANUT DEALERS, CHALISSERY. BY ADV. SRI.N.MURALEEDHARAN NAIR SRI.T.G.ABHILASH RESPONDENTS: ---------------------- 1. ASSISTANT COMMISSIONER (KVAT), SPECIAL CIRCLE, COMMERCIAL TAXES, PALAKKAD. 2. DEPUTY COMMISSIONER, COMMERCIAL TAXES, PALAKKAD. BY GOVT. PLEADER SRI C.K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 18807/10. PETITIONER'S EXTS: EXT.P1: TRUE COPY OF THE ORDER PASSED BY THE IST RESPONDENT DATED 22.2.2008. EXT.P2: TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 18.2.2008. EXT.P3: TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DATED 22.3.2010. EXT.P4: TRUE COPY OF THE 'F' FORM DATED 28.2.2009. //TRUE COPY// C.K. ABDUL REHIM, J. ---------------------------------------- W.P(C) No. 18807 of 2010 ---------------------------------------- Dated the Ist day of December, 2010 JUDGMENT Issue involved in this writ petition relates to refund of input tax credit. The petitioner had approached the Ist respondent seeking refund of input tax with respect to the year 2006-07 and an application filed in this regard, dated 16.7.2007, was rejected by the first respondent as belated, as per Ext.P1 order, for the reason that the last date for filing the application was 30.6.2007. It was also stated that the petitioner has not filed any supporting documents like, F Form, Form 44 and transport documents along with the claim for refund. 2. On receipt of Ext.P1, the petitioner had approached the 2nd respondent by submitting an application for condonation of delay as provided under section 20 A of the KVAT Act. Ext.P2 is the application submitted in this regard. According to the petitioner, the delay caused in submitting the refund application was not due to any negligence or inaction. It is submitted that, the petitioner had entrusted his accountant to submit such application within time and WPC 18807/10 :-2:- only due to the exigencies of overwork, the accountant could not prepare the application and file the same within the time stipulated. 3. The application for condonation of delay filed as per Ext.P2 was rejected by the 2nd respondent through Ext.P3 order. The 2nd respondent had informed the petitioner that the application could not be allowed since the petitioner had failed to produce the supporting documents to prove the claim for exemption for allowing input tax credit. It is stated that genuineness of such claim can be ascertained only on verification of the relevant forms along with accounts and in the absence of such evidence, the delay condonation petition is liable to be rejected. 4. Ext.P3 order is assailed in this writ petition on the ground that the same was issued without affording any opportunity of hearing to the petitioner. It is stated that the petitioner was having custody of all the records and documents. But according to him Ext.P2 application was filed before the 2nd respondent only for the limited purpose of seeking condonation of delay as per the provisions of section WPC 18807/10 :-3:- 20A of the KVAT Act. The petitioner was intending to produce all the relevant records before the Ist respondent, once the delay is condoned. Therefore, the rejection of the petition seeking condonation of delay on the ground that the petitioner had failed to produce the documents before the assessing authority is not legal or justified, is the contention. 5. Learned Government Pleader appearing on behalf of the respondents contended that, the 2nd respondent had considered merits of the claim of the petition. Since the petitioner had failed to produce any documents to substantiate his claims, the 2nd respondent had arrived at a conclusion that there is no merit in the petition seeking condonation of delay. Learned Government Pleader also pointed out that the provisions for condoning the delay as contained in section 20A was introduced only with effect from 1.4.2008 and that the application filed seeking refund on an earlier occasion need not be considered under section 20A. 6. Considering the rival contentions, I am of the view that the 2nd respondent had erred in disposing the matter without affording any opportunity of personal hearing of the WPC 18807/10 :-4:- petitioner. It is also pertinent to note that the application submitted before the 2nd respondent is one for condonation of delay in filing the refund application. The 2nd respondent ought to have considered merits of the relief sought for therein, which is only for condonation of delay. The proper course left to the the 2nd respondent is to consider whether there is any merit with respect to the cause of delay and to take a decision as to whether the delay is liable to be condoned or not. It is also left open to the 2nd respondent to decide whether Section 20A was applicable in the case at hand. Instead, the 2nd respondent had rejected the delay condonation application for the reason that the petitioner had failed to produce documents before the assessing authority. It is pertinent to note that, once the delay is condoned, the petitioner will get an opportunity to produce supporting documents before the assessing authority as and when the refund application is considered by that authority. 7. Therefore, I am of the view that the rejection of the application for condonation of delay without considering its merits on the ground of non production of supporting WPC 18807/10 :-5:- documents is highly improper and unjustifiable. Further, I find merit in the contention of the petitioner that such an order is issued without affording any opportunity of hearing to the petitioner. 8. Under the above circumstances, Ext.P3 is hereby quashed. The matter is remitted back to the 2nd respondent for fresh consideration. The 2nd respondent shall consider Ext.P2 application, after affording a reasonable opportunity of hearing to the petitioner, and shall take a decision as to whether the delay caused in filing the refund application is liable to be condoned or not. The needful shall be done by the 2nd respondent as expeditiously as possible, at any rate , within one month from the date of receipt of a copy of this judgment. C.K. ABDUL REHIM JUDGE. kvm/- WPC 18807/10 :-6:- kvm/- WPC 18807/10 :-7:-