The High Court dismissed an appeal against the single judge's order upholding a show-cause notice and assessment by the Assisting Labour Officer under the Building and Other Construction Workers' Welfare Cess Act due to unexplained delay and lack of exhaustion of statutory remedies.
The appeal was dismissed in its entirety.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HON'BLE THE ACTING CHIEF JUSTICE MR.J.B.KOSHY
&
THE HONOURABLE MR. JUSTICE V.GIRI
WEDNESDAY, THE 4TH FEBRUARY 2009 / 15TH MAGHA 1930
WA.No. 1593 of 2007()
--------------------{IN WPC.19439/2007 OF THIS COURT}
APPELLANT(S): PETITIONER IN WP:
PADMAJA V.PAI, W/O.K.N.VENKITESWARA PAI, SIVASAKTHI, 41/745, KRISHNASWAMY ROAD, ERNAKULAM, KOCHI.
BY ADV. SRI.R.LAKSHMI NARAYAN
SMT.R.RANJINI
RESPONDENT(S): RESPONDENTS IN WP:
BY GOVERNMENT PLEADER SMT.K.MEERA
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 04/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
J.B. KOSHY, Ag.C.J. &
V.GIRI, J.
W.A.No.1593 of 2007
Dated this the 4th day of February, 2009.
JUDGMENT
GIRI, J.
The petitioner, in W.P.(C)No.19439/07 challenges the judgment of the learned single Judge dismissing her writ petition. She had constructed a residential building in the year 1996 and according to her, she received Ext.P1 notice dated 11.11.2003 from the 1st respondent, the assessing officer, under the Building and Other Construction Workers' Welfare Cess Act {for short “ the Act ”}. She then submitted a return in Form No.1, disclosing a cost of construction as Rs.16 lakhs. It seems that Ext.P4 order of assessment was passed thereafter on 24.8.2004 assessing the petitioner for an amount of Rs.31,865/- towards the cess payable under the Act and also levying an amount of Rs.63,733/- by way of penalty.
not served with a pre-assessment notice and that she was also unaware of Ext.P4 order. According to the petitioner
W.A.No.1593 of 2007
:: 2 ::
she was unaware of Ext.P6 order dated 9.8.2005 also, by which a penalty of Rs.63,733/- was imposed on the petitioner. Ext.P6 refers to a show cause notice dated 30.3.2005. The petitioner challenged Exts.P4 and P6.
any tenable reason for not pursuing the appellate remedy as against Exts.P4 and P6 and for not approaching this court within a reasonable time of the passing of Exts.P4 and P6. The explanation given by the appellant for the alleged ignorance of the passing of Exts.P4 and P6 does not seem to be tenable, especially in the light of Ext.P5 communication, which acknowledges the receipt of Ext.P4.
W.A.No.1593 of 2007
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Ext.P5 is a letter, which was sent from one M/s.KNG Textiles, in which, admittedly the petitioner's son and husband are partners. While conveying a regret for not replying to Ext.P4 notice in time, the author of Ext.P5, one of the partners of KNG Textiles, mentions that the petitioner's address given in Ext.P4 was wrong; and the assessment proceedings relate to construction of a residential building by the petitioner. It seems that the notices which were actually received by M/s.KNG Textiles were then returned. It is quite far-fetched on the part of the petitioner to ignore the contents of Ext.P5, which acknowledges the receipt of Ext.P4 notice. After all, it is her husband and son who are partners of the firm and a technical contention that she need not, therefore, be imputed with the knowledge of Ext.P4 does not merit acceptance.
W.A.No.1593 of 2007
:: 4 ::
petitioner, she was aware of Ext.P2 revenue recovery notice because, her son had informed her of the same. The address given in Ext.P2 is the same as that given in Exts.P4 and P6.
For all these reasons, we find no merit in this appeal and accordingly the same is dismissed.
Sd/-
( J.B. KOSHY)
ACTING CHIEF JUSTICE
Sd/-
sk/
//true copy//
P.S. to Judge
3 issues framed by the court
Whether the appellant was entitled to approach the High Court directly without exhausting the statutory appellate remedy against the assessment and penalty orders.
Whether the delay in filing the writ petition by the appellant is tenable.
Whether the High Court had jurisdiction to entertain the writ petition given the delay and lack of exhaustion of alternative remedies.
PADMAJA V.PAI
ASST. LABOUR OFFICER GRADE-I, ERNAKULAM
J.B. KOSHY
V. GIRI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
