M/S Indian Associates, Autorikshaw Dealer, Kutti Puram v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR.JUSTICE K.HARILAL WEDNESDAY, THE 12TH DAY OF DECEMBER 2012/21ST AGRAHAYANA 1934 ST.Rev..No. 103 of 2012 () -------------------------- T.A.8/2012 of KERALA AGRICULTURAL INCOME TAX AND SALES TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH, PALAKKAD. PETITIONER(S)/APPELLANT: ----------------------- M/S.INDIAN ASSOCIATES, AUTORIKSHAW DEALER, KUTTIPURAM, REPRESENTED BY ITS MANAGING PARTNER, MOHAMMED KUTTY. BY ADVS.SRI.N.MURALEEDHARAN NAIR SRI.V.K.SHAMUSUDHEEN SMT.K.HYMAVATHY RESPONDENT(S)/RESPONDENT: ------------------------- STATE OF KERALA BY GOVERNMENT PLEADER SRI. BOBBY JOHN PULIKKAPARAMBIL THIS SALES TAX REVISION HAVING COME UP FOR ADMISSION ON 12-12-2012, ALONG WITH S.T.REV NOS.104, 105 AND 106 OF 2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: DSV/- ST.Rev..No. 103 of 2012 () ## APPENDIX PETITIONER'S ANNEXURES: A- COPY OF THE ASSESSMENT ORDER PASSED BY ADDITIONAL SALES TAX OFFICER-II, TIRUR, FOR THE YEAR 1999-2000 DATED 28.05.2003. B- COPY OF THE COMMON ORDER PASSED BY DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES, ERNAKULAM, FOR THE YEAR 19992000 & 2000-01, DATED 29.11.2011. C- COPY OF THE COMMON TRIBUNAL ORDER IN T.A.NOS.8/2012 TO 11/2012 FOR THE YEARS 1999-2000 AND 2000-01 DATED 30.04.2012. D- COPY OF THE MEDICAL CERTIFICATE DATED 04.02.2011. E- COPY OF THE COMMON TRIBUNAL ORDER IN R.P.NOS.1/2012 TO 4/2012 FOR THE YEARS 1999-2000 AND 2000-01 DATED 07.09.2012. RESPONDENT'S ANNEXURES: NIL // TRUE COPY // P.A. TO JUDGE DSV/- ## **K. M. JOSEPH & K. HARILAL, JJ. ---------------------------------------------S.T.REV.NOS.103, 104, 105 & 106/12 ----------------------------------------------Dated this the 12th December, 2012** ## **JUDGMENT** ## **K.M. Joseph, J.** These S .T. Revisions being filed by the same party, they are disposed of by this common Judgment. 2. S.T.Rev.Nos.103/12 & 105/12 relate to the assessments completed under the KGST Act in respect of assessment years 1999-2000 and 2000-2001. The assessments were completed essentially on the basis of check post declarations by which it was found that the revision petitioner/firm had not accounted the transactions relating to purchase of autorikshaws and had, therefore, evaded payment of tax under the KGST Act. 3. The other two S. T. Revisions, namely, S. T. Rev. Nos.104/12 & 106/12 relate to penalty imposed in respect of the same assessment years. 4. We heard the learned counsel for the revision petitioner _**STRV.103, 104, 105 & 106/12 2**_ and the learned Government Pleader. 5. The Appeals filed against the orders of assessment and orders of penalty were delayed by 2789 days. The appellate authority did not find any reason to accept the explanation for delayed filing of the Appeals. Accordingly, the Appeals were dismissed. Against the same, the revision petitioner approached the Tribunal. The Tribunal also found that there is no basis for condoning the delay and it is against the said orders that these Revisions have been filed. 6. A Medical Certificate is produced as Annexure D. It reads as follows: _“I, Dr. K. Pavithran, B.Sc. MBBS. Hereby certify that Mr. Mohammedkutty, S/o. Alavi, Naduvela Valappil House, Alankode P.O. Whose signature is given above suffering from hypertension and mental problems due to death of his wife on 1-32003. I consider that he requires complete rest on that period.”_ _**STRV.103, 104, 105 & 106/12 3**_ 7. We notice that the certificate is dated 4.2.2011. The certificate does not indicate that the Managing Partner who is apparently referred to in the certificate, was under the treatment of the medical practitioner who issued the certificate. The medical practitioner is apparently a general medical practitioner and what is stated is that he was having hypertension and mental problem. 8. No doubt, the learned counsel for the revision petitioner would point out that this is a case where huge amount has been imposed in the aggregate by way of assessment and penalty. According to him, the entire accounts were seized. A request was made, it is submitted, for return of the sale bills and other documents so as to give a proper reply. It is also his case that accounts were given. It is also stated that details relating to transport was not made available. Learned counsel for the revision petitioner would also draw our attention to the Judgment of the Apex Court in _**Collector, Land Acquisition, Anantnag and Another**_ v. _**Mst. Katiji And Others**_ (1987) Vol.66 STC 228), _**STRV.103, 104, 105 & 106/12 4**_ wherein the Apex Court was considering a case where the Government of a State challenged the dismissal of the application for condonation of delay of four days in filing the Appeal in a land acquisition case. Therein, no doubt, the Court has propounded the need for adopting a liberal approach. The Court, inter alia, held as follows: - _“1. Ordinarily a litigant does not stand to_ - _benefit by lodging an appeal late._ _2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties._ _3. “Every day's delay must be explained” does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay ? The doctrine must be applied in a rational common sense pragmatic manner._ _4. When substantial justice and technical considerations are pitted against each other, cause of_ _**STRV.103, 104, 105 & 106/12**_ _**5**_ _substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay._ _5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk._ _6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so._ _Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal.”_ 9. Per contra, learned Government Pleader would point out that after issuance of notice, sufficient time was granted. He would point out that accounts were not produced. _**STRV.103, 104, 105 & 106/12 6**_ 10. As far as details relating to the bills and the persons from whom the purchase was effected, we would notice that in the notice issued by the Officer, entire details are given. It appears to be true that transport details were not given. Going by what is extracted, we notice that the revision petitioner did not seek any opportunity to cross-examine the transporter. That apart, we also notice as evident from the order of the first appellate authority that one of the Partners had approached the High Court by filing a Writ Petition and this Court granted opportunity to file Appeal against the order within three months from the date of the order. This opportunity was not availed of by the Partners. The present Revisions are filed by the firm purporting to be represented by the Managing Partner. Therefore, the Revisions are filed after the Partners who had approached the High Court earlier and chosen not to avail of the opportunity granted by the High Court. Therefore, in the facts and circumstances of these cases, it may not be apposite to adopt the principles which have been declared by _**STRV.103, 104, 105 & 106/12 7**_ the Apex Court. In the facts of these cases, we, therefore, would think that it will not be open to the revision petitioner to contend that the Tribunal has either erroneously decided the question of law or failed to decide the question of law. There is no merit in the Revision Petitions and they are dismissed. **Sd/=** **K. M. JOSEPH, Sd/= K. HARILAL, JUDGE** **JUDGE** **kbk.** _**//True Copy//**_