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State Of Kerala Rep.By Joint vs Department Of Sacred Music And on 7 August, 2009

Kerala High Court
State Of Kerala Rep.By Joint vs Department Of Sacred Music And on 7 August, 2009
       

  

  

 
 
  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

kmd

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