IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 32863 of 2010(G)
1. M/S.CALICUT TECHNO AGENCIES,
... Petitioner
Vs
1. APPELLATE ASSISTANT COMMISSIONER,
... Respondent
2. SALES TAX APPELLATE TRIBUNAL,
3. STATE OF KERALA,
For Petitioner :SRI.A.K.SRINIVASAN
For Respondent : No Appearance
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :12/11/2010
O R D E R
C.K.ABDUL REHIM, J
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W.P(C) No.32863 of 2010-G
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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