IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 13914 of 2009(H) 1. STATE OF KERALA REP.BY JOINT ... Petitioner Vs 1. DEPARTMENT OF SACRED MUSIC AND ... Respondent For Petitioner :GOVERNMENT PLEADER For Respondent :SRI.RAMESH CHERIAN JOHN The Hon'ble MR. Justice P.R.RAMACHANDRA MENON Dated :07/08/2009 O R D E R P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P. (C) No. 13914 of 2009 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 7th day of August, 2009 JUDGMENT
The assessment orders passed in the case of the respondent,
who is a dealer of Cassettes and CD’s, in respect of the assessment
years 1999-’00, 2000- ’01 and 2001 – ’02 granting exemption as
‘second sale’ were reopened under Section 19. The finding rendered
by the assessing officer was set aside by the appellate authority, under
which circumstance, the State filed appeals before the Tribunal with a
petition to condone the delay of ’90’ days in filing the appeals. The
grievance of the petitioner/State is that, the Tribunal dismissed the
applications for condoning the delay without proper application of mind
and also without referring to the available materials on record.
2. Heard the learned counsel for the respondent as well.
3. The learned Government Pleader appearing for the petitioner
submits that, the appeals preferred by the State were dismissed as per
Ext.P5 order without considering the merits, as a natural consequence
to dismissal of the petitions filed for condoning the delay vide Ext.P6.
The specific case of the petitioner as projected in paragraph 4 of the
Writ Petition is that, the reasoning given by the Tribunal for dismissing
the petitions for condoning the delay cannot be held as correct or
sustainable under any circumstances, for the obvious fact that the
WP (C) No. 13914 of 2009
: 2 :
additional affidavit filed by the Deputy Commissioner, Kollam on
2.8.2008 rectifying the mistake in the earlier affidavit has not been
adverted to by the Tribunal at all. For the very same reason (i.e. when
the Tribunal omitted to advert to the contents of the additional affidavit
dated 2.8.2008 filed from the part of appellant), the reliance placed on
the decision rendered by the Apex Court in Ramachandran Vs. State
of Kerala (1997 (2) KLT 647) has no significance or consequence.
4. That apart, it is to be noted that the delay involved in the
present case is only of ’90’ days. It has been observed by the Supreme
Court as per many a decision rendered in Special Tehsildar, Land
Acquisition, Kerala Vs. K.V. Ayisumma (AIR 1996 SC 2750); State
of Madhya Pradesh Vs. S.S. Akolkar (AIR 1996 SC 1984) and State
of Haryana Vs. Chandra Mani and others (AIR 1996 SC 1623)
holding that, the delay on the part of the ‘Government’ has to be
liberally construed; particularly since much ‘public money’ is involved.
Above all, it has also been made clear by the Apex Court as per the
decision reported in M. Balakrishnan Vs. M. Krishnamoorthy (1998
(7) SCC 123) that the ‘extent of delay’ is not the matter that weighs and
the question to be considered is, whether the explanation offered by the
party is acceptable or not. In the instant case, particularly since the
facts and circumstances pointed by the petitioner/State vide the
WP (C) No. 13914 of 2009
: 3 :
additional affidavit dated 2.8.08 have not been considered by the
Tribunal, the impugned orders are not correct or sustainable.
5. Accordingly Exts. P5 and P6 are set aside. Considering the
dictum laid down by the Apex Court as per the decisions referred
hereinbefore, the delay of ’90’ days on the part of the petitioner/State is
condoned and the Tribunal is directed to consider the appeals on
merits, after hearing both the sides, as expeditiously as possible.
P. R. RAMACHANDRA MENON, JUDGE