A. Prathap v. The Commercial Tax Officer, Commercial Taxes, Kundara, Kollam; Deputy Commissioner (Appeals), Commercial Taxes, Kollam; Deputy Tahsildar (RR), Kollam Taluk Office, Kollam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** ## **THURSDAY, THE 28TH DAY OF JANUARY 2016/8TH MAGHA, 1937** ## **WP(C).No. 3324 of 2016 (M)** **--------------------------------------** **PETITIONER(S):** **----------------------** **A.PRATHAP, PROPRIETOR, BIBIN CHASHEWS, NEDUMPANA P.O., KOLLAM - 691 580.** **BY ADVS.SRI.V.DEVANANDA NARASIMHAM SRI.P.H.RIYAS SRI.M.FASALUDEEN** **RESPONDENT(S):** - **-------------------------** **1. THE COMMERCIAL TAX OFFICER, COMMERCIAL TAXES, KUNDARA, KOLLAM - 691 501.** **2. THE DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES, BAPPUJI NAGAR, ASRAMAM, KOLLAM - 691 002.** **3. THE DEPUTY TAHSILDAR (RR), KOLLAM TALUK OFFICE, KOLLAM - 691 013.** **BY GOVERNMENT PLEADER SMT.LILLY K.T.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** ## **WP(C).No. 3324 of 2016 (M) --------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-------------------------------------** - **P1 - TRUE COPY OF THE CERTIFICATE OF REGISTRATION DT. 13.6.08 ISSUED BY 1ST RESPONDNET TO THE PETITIONER.** - **P2 - TRUE COPY OF THE ASSESSMENT ORDER DT. 20.4.2009 FOR THE RETURN PERIODS FROM 04/2008 TO 02/2009 ISSUED BY 1ST RESPONDNET TO THE PETITIONER.** - **P3 - TRUE COPY OF APPEALLATE ORDER KVATA 261/09 DT. 07.8.2012 FOR THE YEAR 2008-09 RESPONDENT TO THE PETITIONER.** - **P4 - TRUE COPY OF ESCAPED ASESSMENT ORDER PASSED U/S 25(1) OF THE KVAT ACT DT. 30.11.2009 FOR THE YEAR 2008-09.** - **P5 - TRUE COPY OF APPEAL MEMORANDUM DT. 30.6.2015 FILED BY PETITIONER AGAINST EXT. P4 ASESSMENT ORDER BEFORE 2ND RESPONDENT.** - **P6 - TRUE COPY OF THE INTERLOCUTORY APPLICATION FOR CONDONATION OF DELAY DT. 30.7.2015 FILED BY THE PETITIONER BEFORE 2ND RESPONDENT.** - **P7 - TRUE COPY OF RR NOTICE DT. 10.10.2014 ISSUED BY 3RD RESPONDENT TO THE PETITIONER.** - **P8 - TRUE COPY OF DISMISSAL CUM REJECTION ORDER OF DELAY CONDONATION & APPEAL DT. 14.1.2016 FOR 2008-09.** ## **RESPONDENT(S)' EXHIBITS** - **---------------------------------------** **NIL.** ## **/ TRUE COPY /** **P.S. TO JUDGE** **PJ** **A.K.JAYASANKARAN NAMBIAR, J. ............................................................. W.P.(C).No.3324 Of 2016 ............................................................. Dated this the 28[th] day of January, 2016** ## **J U D G M E N T** The challenge in the writ petition is against Ext.P8 order of the 2[nd] respondent that dismisses a delay condonation application, and consequently the appeal preferred by the petitioner, against an assessment order for the assessment year 2008-2009 under the Kerala Value Added Tax Act. The learned counsel for the petitioner would submit that while passing Ext.P8 order, the 2[nd] respondent appellate authority did not exercise his discretion in a valid manner and that the petitioner had offered a valid reason for justifying the delay in approaching the appellate authority with the appeal, and the same ought to have been condoned by the appellate authority. 2. I have heard the learned counsel for the petitioner and also the learned Government Pleader for the respondents. 3. On a consideration of the facts and circumstances of the -2- W.P.(C). No.3324 of 2016 case as also the submissions made across the Bar, I find that, in Ext.P8 order, there is no discussion, with reference to the relevant case law, as to why the justification offered by the petitioner for the delay could not be accepted. In this connection, it is relevant to quote the following observations from the judgment of this Court dated 19.03.2015 in W.P(C).No.7577 of 2015, wherein while considering the legality of a similar order, this Court observed as follows: “2. In my view, the order of the Appellate Tribunal, in the delay condonation application preferred by the petitioner, does not reflect a consideration of the facts relevant for consideration of the issue of condonation of delay in second appeal, under a statutory scheme of litigation. The parameters for exercise of discretion, in cases involving condonation of delay, have been laid down by the Supreme Court in a number of decisions wherein it is stated that, normally when a claim made by an applicant is legally sustainable, the delay must be condoned. It is also mandated that, when substantial justice and technicalities are pitted against each other, then the cause of substantial justice deserves to be preferred. There are cases where the conduct of a party must also be gone into, and where it is established that the conduct of the litigant party is not such as would indicate that he was negligent or callous in pursuing the matter before the Forum, and further, the delay was not so huge as would cause substantial prejudice or harm to the opposite side, the situation would normally call for a condonation of the delay. The legal -3- W.P.(C). No.3324 of 2016 principle that informs such decisions is that, as far as possible, in a legal arena, the attempt must always be to enable a consideration on merits rather than to throw out the matter, on technicalities. It would be instructive to refer to the judgment of the Supreme Court in **Esha Bhattacharjee v. Managing Committee of - Raghunathpur Nafar Academy and others [JT 2013 (12) SC 450],** where, at paragraphs 15 and 16, the court culled out the broad principles that should govern an application for condonation of delay. They read as follows: **15.** From the aforesaid authorities the principles that can broadly be culled out are: i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice. ii) The terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation. iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. -4- W.P.(C). No.3324 of 2016 vi) it is to kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play. viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. ix) The conduct, behavior and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation. xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial -5- W.P.(C). No.3324 of 2016 discretion which is founded on objective reasoning and not on individual perception. xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude. **16.** To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are: a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistence and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto. d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters.” On a consideration of Ext.P8 order that is impugned in the instant case, I am of the view that, the 2[nd] respondent appellate authority has not considered the application for condonation of -6- W.P.(C). No.3324 of 2016 delay filed by the petitioner, in accordance with the principles laid down by this court and the Supreme Court. Accordingly, I quash Ext.P8 order and direct the 2[nd] respondent appellate authority to restore the appeal and delay condonation application to file and consider the application filed for delay condonation application afresh within a period of two months from the date of receipt of a copy of this judgment, after hearing the petitioner. I make it clear that, till such time as orders are passed by the 2[nd] respondent appellate authority as directed there will be a stay of recovery proceedings pursuant to Ext.P7 notice issued to the petitioner. ## **A.K.JAYASANKARAN NAMBIAR JUDGE** mns/28.01.16 -7- W.P.(C). No.3324 of 2016