IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 12TH NOVEMBER 2010 / 21ST KARTHIKA 1932 WP(C).No. 32863 of 2010(G) ---------------------------------- PETITIONER(S): ------------------- M/S.CALICUT TECHNO AGENCIES, REPRESENTED BY ITS PARTNER M.M.SANTHOSH KUMAR, S/O.MADHAVAN NAIR, MADANCHERI MEETHAL HOUSE, PAINGOTTUPURAM AMSOM DESOM, KUTTIKKATTOOR. BY ADVS. SRI.A.K.SRINIVASAN SRI.VINODKUMAR SRI.JIMMY GEORGE SRI.A.S.BENOY RESPONDENT(S): -------------------- 1. APPELLATE ASSISTANT COMMISSIONER, COMMERCIAL TAXES, CALICUT-673 006. 2. SALES TAX APPELLATE TRIBUNAL, KOZHIKODE-673 032. 3. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, TRIVANDRUM-695 001. R1 TO R3 BY GOVT.PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs/ C.K.ABDUL REHIM, J --------------------------------------- W.P(C) No.32863 of 2010-G ---------------------------------------- Dated this the 12th day of November, 2010. J U D G M E N T Ext.P4 order through which the second respondent Tribunal had dismissed the delay condonation application and Ext.P5 consequential order through which the statutory appeal filed by the petitioner was dismissed, are under challenge in this writ petition. Assessments for the year 2000-01 and 2001-02 were completed under the provisions of KGST Act and was taken up in appeal by the petitioner before the Deputy Commissioner. Through Ext.P3, the appeals were dismissed. Against order of the first appellate authority the petitioner had filed further appeals before the second respondent Tribunal. Along with the appeals the petitioner had filed petitions seeking condonation of delay. There was a delay of 1217 days. Through Ext.P4 common order the delay condonation applications were dismissed observing that the appeals have been filed without any bonafides, with a delay of more than 1000 days, without any W.P(C) No.32863 of 2010-G 2 sufficient cause. 2. Specific contention of the petitioner is that, the Managing Partner, who was representing the firm in all matters, was totally bed ridden due to severe nervous complaints and that he was not in a position to move around. A medical certificate was also produced in this regard, along with the delay condonation application. But the Tribunal observed that, contentions raised by the State representative is that the physical presence of the appellant was not at all necessary for preferring the appeals. Apart from that the Tribunal had gone into the merits of the appeals and found that the appellants have failed in producing necessary documents to prove the exemption claimed by them. Consequent to dismissal of the delay condonation applications, the appeals were also dismissed as per Ext.P5 order. 3. On consideration of Ext.P4 it is evident that the Tribunal had not properly adverted to the reasons enumerated in the affidavit filed in support of the petitions, W.P(C) No.32863 of 2010-G 3 explaining the cause of delay. On the other hand the Tribunal had gone into merits of the appeal. But at the same time the appeals were not disposed of considering the merits. I am of the view that the approach of the Tribunal in this regard is not proper and regular. The Tribunal ought to have considered the question regarding condonation of delay independently with that of the merits in the appeal. However, it is noticed that the cause enumerated by the petitioner for the delay, based on the medical certificate produced has not been properly adverted. It is settled law that as far as possible all causes should be decided on merits, rather than dismissing them on technicalities. 4. Under the above circumstances, I am of the view that the second respondent Tribunal can be directed to take up the appeal and dispose of the same on merits by condoning the delay subject to imposition of cost for compensating the department for the latches on the part of the petitioner. of course there is laches on the part of the petitioner which can be compensated in terms of cost. W.P(C) No.32863 of 2010-G 4 5. Therefore the writ petition is disposed of quashing Exts.P4 and P5. The delay condonation applications filed along with the appeals, T.A.Nos.332 of 2009 and 333 of 2009 are hereby condoned subject to condition of the petitioner making payment of a cost of Rs.3,000/- to the department, within two weeks from from the date of receipt of a copy of this judgment, which will be paid by the petitioner to the first respondent and receipt will be produced before the second respondent Tribunal. On production of proof regarding payment of cost, the second respondent shall take up the appeals and dispose of the same on merits, after affording an opportunity of hearing to the petitioner, at the earliest possible, at any rate within a period of two months from the date of receipt of proof regarding payment of cost. Sd/- C.K.ABDUL REHIM, JUDGE //True Copy// ab P.A to Judge