Dismissed

The Commercial Tax Officer v. Kaveri Viswanathan

Kerala HC25 Jan 2012WA/1861/2011

Case brief

AI extract

What is this about?

This sitting judgment dismisses a writ appeal without deciding on maintainability, as the Single Judge correctly exercised discretion on delaying the tax appeal while allowing the department to seek excess tax recovery before the Tribunal.

What did the court decide?

Writ appeal closed; liberty granted to appellant to raise excess collection issue before the Sales Tax Appellate Tribunal.

The Commercial Tax Officer Vs Kaveri Viswanathan — Civil Procedure and Limitation | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE C.N.RAMACHANDRAN NAIR

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THE HON'BLE MR. JUSTICE BABU MATHEW P.JOSEPH

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WEDNESDAY, THE 25TH DAY OF JANUARY 2012/5TH MAGHA 1933

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WA.No. 1861 of 2011 ( )

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AGAINST THE JUDGMENT IN OPC.2123/2011 DATED 20-07-2011

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APPELLANTS/RESPONDENTS 1&3:

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THE COMMERCIAL TAX OFFICER, SECOND CIRCLE, KALAMASSERY.

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STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, KERALA GOVT. SECRETARIAT, TRIVANDRUM.

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BY G.P. SRI.BOBBY JOHN

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RESPONDENT/PETITIONER:

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KAVERI VISWANATHAN, PROPRIETOR, SRI VISHNU SALES CORPORATION, KAKKANAD, ERNAKULAM, PIN.682 030.

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BY ADV. SRI.E.P.GOVINDAN

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 25-01-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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C.N.RAMACHANDRAN NAIR, & BABU MATHEW P. JOSEPH, JJ.

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.................................................................... Writ Appeal No.1861 of 2011

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.................................................................... Dated this the 25th day of January, 2012.

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JUDGMENT

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Ramachandran Nair, J.

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Appeal is filed against judgment of the learned Single Judge quashing the order of the Sales Tax Appellate Tribunal which declined to condone delay in filing appeal and directed disposal of the appeal on merit. At the admission stage counsel for the respondents submitted that Writ Appeal is not maintainable because the judgment impugned is issued by the learned Single Judge under Article 227 of the Constitution of India. Government Pleader opposed stating that the order passed is in writ petition filed under Article 226 read with Article 227 of the Constitution. We do not think there is any need for us to discuss and decide the technical issue on maintainability of Writ Appeal because the Single Judge has exercised discretion in condoning the delay by referring to several judgments of the Supreme Court. We feel the maximum grievance for the State is that the appeal will get decided on merit by the Tribunal. Of course since the respondent has

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W.A. 1861/2011

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chosen to file belated appeal over two years after accepting the first appellate order, it is open to the department to canvass before the Tribunal as to whether there was collection of tax in excess of the lower rate claimed by the assessee and if so, to seek forfeiture of excess collection instead of refund. The Writ Appeal is closed leaving freedom to the appellant to raise the above issue before the Tribunal.

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C.N.RAMACHANDRAN NAIR Judge

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BABU MATHEW P. JOSEPH Judge

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pms

The Commercial Tax Officer v. Kaveri Viswanathan

Case brief

What is this about?

What did the court decide?

The Commercial Tax Officer v. Kaveri Viswanathan

Case brief

What is this about?

What did the court decide?

What the court decided

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