Allowed

Betty Sebastian v. the Assistant Commissioner

Kerala HC11 Feb 2016OP (TAX)/1/2016

Case brief

AI extract

What is this about?

Petitioner challenged the Tribunal's refusal to condone a 1326-day delay in filing tax appeals. The court found the dismissal unjustified without merits assessment and directed the Tribunal to condone the delay upon payment of ₹10,000, allowing the appeals to be heard on merits.

What did the court decide?

Directed the appellate authority to condone the delay of 1326 days upon payment of ₹10,000 to the State Exchequer and consider the appeals on merits.

Betty Sebastian Vs the Assistant Commissioner — Income Tax | Kerala HC (2016)

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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 THOTTATHIL B.RADHAKRISHNAN

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THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

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THURSDAY, THE 11TH DAY OF FEBRUARY 2016/22ND MAGHA, 1937

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OP (TAX).No. 1 of 2016 (Q)

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AGAINST THE ORDER IN TA 75 & 76 /2014 of S.T.A.T.ADDL.BENCH,ERNAKULAM

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PETITIONER:

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BETTY SEBASTIAN

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W/O.V.D.SEBASTIAN, NOW RESIDING AT FLAT NO.7C BETRONS TOWERS, BLOSSOM ROAD, ELAMKULAM, ERNAKULAM KOCHI - 20.

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BY ADVS.SMT.INDU SUSAN JACOB SRI.V.K.SHAMUSUDHEEN

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RESPONDENTS:

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THE ASSISTANT COMMISSIONER DEPARTMENT OF COMMERCIAL TAXES, SPECIAL CIRCLE - III COMMERCIAL TAX COMPLEX, ERNAKULAM, KOCHI - 682 015.

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THE FAST TRACK TEAM COMMERCIAL TAXES DEPARTMENT, SPECIAL CIRCLE-III COMMERCIAL TAX COMPLEX, ERNAKULAM, KOCHI - 682 015.

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THE TAHSILDAR

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TALUK OFFICE, KUNNATHUNADU, PERUMBAVOOR - 682 011.

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THE SALES TAX APPELLATE TRIBUNAL ADDITIONAL BENCH, ERNAKULAM - 682 015.

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BY BY SENIOR GOVERNMENT PLEADER SMT.SHOBA ANNAMMA EAPEN

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THIS OP TAX HAVING BEEN FINALLY HEARD ON 11-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP (TAX).No. 1 of 2016 (Q)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXT.P-1: TRUE COPY OF THE ASSESSMENT ORDER PASSED BY IST RESPONDENT FOR THE YEAR 2003 - 04 DATED 26.2.2011

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EXT.P-2: TRUE COPY OF THE ASSESSMENT ORDER PASSED BY IST RESPONDENT FOR THE YEAR 2004 - 05 DATED 26.2.2011

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EXT.P-3: TRUE COPY OF THE JUDGEMENT IN WPC NO.2249 OF 2014 DATED 5.2.2014

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EXT.P-4: TRUE COPY OF THE JUDGEMENT IN WA NO.626 OF 2014 DATED 16.9.2014

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EXT.P-5: TRUE COPY OF NOTICE IN FORM NO.11 ISSUED BY THE 5TH RESPONDENT DATED 21.2.2014

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EXT.P-6: TRUE COPY OF THE ORDER IN IA NO.5487 OF 2012 IN OS NO. 807 OF 2012 DATED 4.3.2014

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EXT.P-7: TRUE COPY OF THE APPEAL DATED 28.10.2014 FILED BEFORE THE 4TH RESPONDENT AGAINST EXT.P1 ORDER

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EXT.P-8: TRUE COPY OF THE APPEAL DATED 28.10.2014 FILED BEFORE THE 4TH RESPONDENT AGAINST EXT.P2 ORDER

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EXT.P-9: TRUE COPY OF THE STAY PETITION DATED 28.10.2014 FILED BEFORE THE 4TH RESPONDENT ALONG WITH EXT.P7 APPEAL.

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EXT.P-10: TRUE COPY OF THE STAY PETITION DATED 28.10.2014 FILED BEFORE THE 4TH RESPONDENT ALONG WITH EXT.P8 APPEAL

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EXT.P-11: TRUE COPY OF THE DELAY PETITION DATED 28.10.2014 FILED BEFORE THE 4TH RESPONDENT ALONG WITH EXT.P7 APPEAL

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EXT.P-12: TRUE COPY OF THE DELAY PETITION DATED 28.10.2014 FILED BEFORE THE 4TH RESPONDENT ALONG WITH EXT.P8 APPEAL

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EXT.P-13: TRUE COPY OF THE ADDITIONAL AFFIDAVITS FILED BEFORE THE 4TH RESPONDENT (2003-04) DATED 31.1.2015

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EXT.P-14: TRUE COPY OF THE ADDITIONAL AFFIDAVITS FILED BEFORE THE 4TH RESPONDENT (2004-05) DATED 31.1.2015

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EXT.P-15: TRUE COPY OF THE ORDER PASSED BY THE 4TH RESPONDENT DATED 5.8.2015

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RESPONDENT(S)' EXHIBITS: NIL

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TRUE COPY

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P.A.TO JUDGE

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THOTTATHIL B.RADHAKRISHNAN &

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ANU SIVARAMAN, JJ.

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= = = = = = = = = = = = = = = = = = = = = = = = = =

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O.P.(Tax) No.1 of 2016

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= = = = = = = = == = = = = = = = = = = = = = = = = Dated this the 11th day of February, 2016

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JUDGMENT

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Anu Sivaraman,J.

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1.This O.P(Tax) is filed challenging an order passed by the Kerala Agricultural Income Tax and Sales Tax Appellate Tribunal refusing to condone the delay of 1326 days in filing Tax Appeal Nos.75 and 76 of 2014. The appellant had challenged the revised assessment order passed under Section 17D(2)d of the KGST Act. The assessment order was dated 26.02.2011. It is alleged that the assessee came to know about the orders only when the revenue recovery notices were received. She had challenged the assessment orders before this Court filing W.P.C.No.5774 of 2012 and by judgment dated 20.03.2012 the writ petition was dismissed as withdrawn with liberty to pursue remedies available to her in accordance with law. It is stated that she had thereafter preferred O.S No.807 of 2012 before the Sub Court, Ernakulam which had originally granted an order of status quo. The assessee had again approached this Court by filing W.P.(C).No.2249 of 2014

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O.P(Tax)1/16

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and W.A.No.626 of 2014 which were dismissed on 05.05.2014 and 16.09.2014 respectively. It is submitted that thereafter on coming to know that an appeal under the KGST Act is the proper remedy, the appellant had withdrawn O.S.No.807/2012 and preferred the appeals under the KGST Act before the Tribunal. The Tribunal, on the ground that the assessee had not made out sufficient grounds for condonation of delay of 1326 days in filing the appeal, dismissed the application for condonation of delay and the appeals stood consequently dismissed. This original petition is filed challenging the said decision.

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2.Heard Sri.V.K.Shamsudheen learned counsel for the petitioner and Smt.Shoba Annamma Eapen, learned Senior Government Pleader appearing for the respondents. On a perusal of the affidavit filed in support of the delay petition and various documents produced by the petitioner, it is seen that the petitioner had been actively prosecuting proceedings before the various courts and authorities though not the proper authorities under law. The petitioner appears to have made an earnest attempt to offer

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O.P(Tax)1/16

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explanations for the delay which occurred in the filing of the appeals. The dismissal of the application for condonation of delay without going into the merits of the appeal does not appear to be justified in the facts of the above case.

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3.In the above circumstances, we deem it appropriate to direct the appellate authority to condone the delay which had occurred in the filing of the appeal on condition that the petitioner pays an amount of Rs.10,000/- (Rupees ten thousand only) to the State Exchequer by appropriate remittance in the Treasury. This shall be done on or before 22.02.2016. On the costs as directed being remitted, the appellate authority shall take up the appeals preferred by the petitioner and consider the same on merits.

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This original petition is ordered accordingly.

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Thottathil B. Radhakrishnan, Judge

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Anu Sivaraman, Judge

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Betty Sebastian v. the Assistant Commissioner

Case brief

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Betty Sebastian v. the Assistant Commissioner

Case brief

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