IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 5TH FEBRUARY 2010 / 16TH MAGHA 1931 WP(C).No. 3833 of 2010(D) ------------------------- PETITIONER(S): --------------- M/S.FARMS INDIA CHICKEN,KODANADU POST, PERUMBAVOOR,COCHIN-683 544,REPRESENTED BY ITS MANAGING PARTNER,MR.PRAMOD.T.S. BY ADV. SRI.K.J.ABRAHAM RESPONDENT(S): --------------- 1. THE ASSISTANT COMMISSIONER(ASSMT)-I, SPECIAL CIRCLE,MATTANCHERY. 2. THE FAST TRACK ASSMT TEAM NO.II, COMMERCIAL TAXES,MATTANCHERY. 3. THE DEPUTY COMMISSIONER,COMMERCIAL TAXES MATTANCHERY. 4. THE SALES TAX APPELLATE TRIBUNAL, ADDL.BENCH,MATTANCHERY AT ERNAKULAM. GOVERNMENT PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON, J. ----------------------------------------------- WP(C) No. 3833 of 2010 -------------------------------------- Dated, this the 5th day of February, 2010 J U D G M E N T The petitioner has approached this Court with the following prayers. (i) To call for the records leading up to Exts.P5, P9 and P10 and quash Exts.P5, P9 and P10 extend to which cancel and remanded the assessment for the years 1997-98 to 2002-03, dismissing the petition to condone the delay in filing appeal and dismiss the order in TA Nos. 523/09 to 528/09 by the issuance of a writ of certiorari and on other appropriate writ, direction or order; (ii) To issue a writ of mandamus or other appropriate writ, direction of order to the 4th respondent to consider and dispose of Ext.P7 series of appeals and Ext.P8 series of petition to condone the delay filed by the petitioner; (iii) to grant such other reliefs as this Hon'ble Court may deem fit and proper; (iv) Allow this Writ Petition with cost. 2. Obviously, the grievance of the petitioner is against Ext.P9 order passed by the Tribunal, whereby the application to condone the delay of 530 days in challenging the order passed by the Deputy Commissioner under Section 35 of the Act was dismissed, followed by the consequential dismissal of the appeal as borne by Ext.P10. 3. The sequence of events shows that the order passed by the WP(C) No.3833/2010 2 Deputy Commissioner is dated 21.12.2007. Subsequent to the above, the proceedings were finalized and the assessment was completed under Section 17 D of the KGST Act and the petitioner approached this Court by filing WP(C) 23683/2009 challenging Section 17 D assessment, mainly contending that the proceedings have been pursued and finalized by the authorities without any regard to the statutory prescription and that the same was contrary to the clear mandate given by this Court. 4. After hearing both the sides, this Court passed Ext.P6 judgment, whereby it was observed (as extracted in paragraph 3 therein) that even though the impugned order was stated as passed by the Fast Track Team consisting of four members, the observation made therein clearly revealed application of mind only by one of the members. Accordingly the impugned order passed under Section 17D was set aside and the Writ Petition was allowed, making it clear that the concerned respondents would be at liberty to finalise the assessment either under Section 17 D or under Section 17(3) as the case may be. The learned counsel for the petitioner submits that the matter is pending consideration, however adding that, if the assessment is finalized under Section 17(3), it will cause irreparable loss and injury to the petitioner. It is however conceded by the learned counsel for the petitioner that absolutely no challenge has been raised against Ext.P6 judgment and the matter has WP(C) No.3833/2010 3 become final. 5. Coming to the particular issue raised in this Writ Petition, as mentioned hereinbefore, the main dispute is against the sustainability of Ext.P5 order passed by the Deputy Commissioner on 21.12.2007. It is also very much relevant to note that there was no challenge for the petitioner with regard to Ext.P5 order in WP(C) 23683/2009. Even otherwise, the matter was finalized by this Court as per Ext.P6 judgment, which admittedly has become final, having not been subject to challenge. It was thereafter that the petitioner chose to approach the 4th respondent Tribunal by filing an appeal against Ext.P5 order passed by the 3rd respondent Deputy Commissioner, along with a petition to condone the delay of 530 days. The main contention raised, as discussed in Ext.P9 order passed by the Tribunal, is that there was no proper service of the copy of the order to the petitioner, but for the fact that a copy was collected by the 'peon' of the petitioner, which according to him will not constitute sufficient service. After taking note of the turn of events, it has been clearly observed in Ext.P9 that the order dated 21.12.2007 was duly served upon the petitioner as early as on 15.01.2008, admittedly through the 'peon' of the petitioner. The relevant entry in the records has not been disputed from the part of the petitioner and the only contention was that the 'peon' was not an authorized representative. It is also observed that WP(C) No.3833/2010 4 the petitioner had no case that anybody other than the peon had been authorised to receive the proceedings on behalf of the petitioner. It was accordingly, that the Tribunal held the explanation offered for the delay as not acceptable and the I.A. was dismissed as per Ext.P9, leading to dismissal of the appeal as per Ext.P10, as a natural consequence. Now, the petitioner has come before this Court, challenging the said proceedings passed by the Tribunal, seeking to have the delay condoned and to have the appeal entertained on merits. 6. Heard the learned Government Pleader as well. 7. As rightly observed by the Tribunal in Ext.P9, the petitioner, after having obtained Ext.P5 judgment getting 17 D assessment set aside and to have the matter reconsidered in accordance with law, has taken a somersault and filed the appeal before the Tribunal seeking to condone the delay of 530 days. Admittedly, the said appeals and the petition to condone the delay are dated 23rd November, 2009, i.e., much after Ext.P6 judgment. The course of events, as observed by the Tribunal in Ext.P9 are not denied any where in the Writ Petition. In other words, the observations made by the Tribunal that the course being pursued by the petitioner only amounts to abuse of the process of the Court appears to be correct and proper. The petitioner has approached this Court again, by filing the present Writ Petition seeking to challenge Ext.P5 order without WP(C) No.3833/2010 5 any regard to the fact that even the subsequent proceedings were got finalized by passing Ext.P6 judgment, giving appropriate direction to the concerned authority to finalise the assessment either under Section 17 D or under Section 17(3), as the case may be. The attempt of the petitioner is only to unsettle the settled position. This Court cannot but deprecate the conduct of the petitioner in the strongest possible words. In the above circumstances, interference is declined and the Writ Petition is dismissed with a cost of Rs.10,000/-. P. R. RAMACHANDRA MENON JUDGE dnc