M/S.HOTEL KARTHIKA V. THE KERALA AGRICULTURAL INCOME TAX

WP(C)/7211/2012

AI Insights

The case involves M/s. Hotel Karthika, which challenged the dismissal of their second appeal by the Kerala Agricultural Income Tax and Sales Tax Appellate Tribunal. The dismissal was based on an 865-day delay in filing the appeal. The petitioner argued that the delay was due to a pending dispute in a Writ Appeal, which had a status-quo order. However, the court found that the status-quo was not granted in a proceeding initiated by the petitioner and that the explanation for the delay was not satisfactory. Consequently, the court upheld the Tribunal's decision and dismissed the writ petition.

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 755758 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 03-07-2014
• Assessment Year: misc
• Laws Referred To: Kerala General Sales Tax Act, 1963
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: SHOBA EAPEN
• Assessee Lawyers: T C SURESH MENON; P S APPU; A R NIMOD
• Keywords: Appeal Dismissal; Assessment Order; Delay condonation; Compounded tax payment
• Section: 5; 7

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN THURSDAY, THE 3RD DAY OF JULY 2014/12TH ASHADHA, 1936 WP(C).No. 7211 of 2012 (B) ------------------------------------- PETITIONER : - ---------------------- M/S.HOTEL KARTHIKA, REPRESENTED BY ITS MANAGING PARTNER, PAIKADA ROAD, KOLLAM. BY ADVS.SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD RESPONDENTS : - --------------------------- 1. THE KERALA AGRICULTURAL INCOME TAX AND SALES TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH, THIRUVANANTHAPURAM-695001. 2. THE DEPUTY COMMISSIONER(APPEALS), COMMERCIAL TAXES, KOLLAM-691001. 3. THE SALES TAX OFFICER, COMMERCIAL TAXES, 1ST CIRCLE, KOLLAM-691001. 4. THE STA TE OF KERALA, REPRESENTED BY THE SECRETARY TO DEPARTMENT OF REVENUE SECRETARIAT, THIRUVANANTHAPURAM-695001. R3 BY Sr. GOVERNMENT PLEADER SMT. SHOBA ANNAMMA EAPEN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 7211 of 2012 (B) ------------------------------------- APPENDIX PETITIONER'S EXHIBITS : EXHIBIT P1 : TRUE COPY OF THE ORDER OF ASSESSMENT DATED 31.1.2008. EXHIBIT P2 : TRUE COPY OF THE LETTER SENT BY THE PETITIONER TO THE THIRD RESPONDENT DATED 7.12.2006. EXHIBIT P3 : TRUE COPY OF THE FIRST APPELLATE ORDER DATED 3.2.2009. EXHIBIT P4 : TRUE COPY OF THE ORDER OF STAY IN W.A. No. 1861/2011 ON THE FILE OF THIS HONOURABLE COURT DATED 5.9.2011. EXHIBIT P5 : TRUE COPY OF TH ORDER IN T.P. No. 73/2011 ON THE FILE OF THE FIRST RESPONDENT TRIBUNAL DATED 21.1.2012. EXHIBIT P6 : TRUE COPY OF THE ORDER IN T.A. No. 67/2011 ON THE FILE OF THE FIRST RESPONDENT TRIBUNAL DATED 21.1.2012. RESPONDENTS' EXHIBITS : NIL. // TRUE COPY // P.A. TO JUDGE DMR/- K.Vinod Chandran, J. ------------------------------------- W.P.(C).No.7211 of 2012-B ------------------------------------- Dated this the 03rd day of July, 2014 JUDGMENT The petitioner is aggrieved by the dismissal of the second appeal filed before the Tribunal, which dismissal was on the sole ground of delay of 865 days in filing the appeal. Though the affidavit filed in support of the delay condonation application is not produced herein, as revealed from Exhibit P5 order, the explanation for the delay was that a dispute was pending before this Court in a Writ Appeal. 2. The short facts required for adjudication of the above matter are that for the year 2006-07, the assessee, being a bar hotel, had compounded the tax payment under Section 7, which is in lieu of the charge under Section 5 of the Kerala General Sales Tax Act, 1963 [for brevity “KGST Act”]. The Assessing Officer had compounded at 140% of the actual purchase value of liquor for the previous year; but, however, later found that the assessee who turnover tax for the year 2003-04 far in excess of the purchase value, the assessee was bound to pay compounded tax at 115% of WP(C).No.7211 of 2012 - 2 - the highest turnover tax. The contention of the assessee was that the said provision was introduced only in July, 2006 when the Bill was introduced in the Assembly. The same was rejected and Exhibit P1 order was passed by the Assessing Officer. 3. First appeal was filed from the assessment order, which was also rejected by Exhibit P3. The assessee contended before the Tribunal that, since the issue was pending before a Division Bench of this Court, as revealed in Exhibit P4, and there was an order of status-quo granted by the Division Bench, the assessee did not take up the matter in second appeal. 4. It is to be noticed that Exhibit P4 has not been passed in a proceeding initiated by the assessee herein. The status-quo order continued on 5.9.2011 is in a Writ Appeal of 2007. It is also seen that the Writ Appeals of 2007 were clubbed with Original Petition of 2003 and connected writ petitions of 2007. Hence, necessarily the status-quo order which was continued as per Exhibit P4 order would have been granted earlier. The writ petition which led to the Writ Appeal was filed earlier and was dismissed in 2007. The first appeal was filed in 2008 and was dismissed on WP(C).No.7211 of 2012 - 3 - 03.02.2009. Even when the first appeal was filed, the said explanation was available. In fact the petitioner has not invoked the extra-ordinary jurisdiction of this Court, but contends that another dealer had obtained status-quo under Article 226 of the Constitution. In such circumstances, the delay sought to be explained cannot be said to be one which was occasioned bona fide. The Tribunal also found the explanation to be unsatisfactory. This Court is not inclined to invoke the extra-ordinary jurisdiction to interfere with the refusal of the Tribunal to exercise discretion. Writ petition stands dismissed. No costs. Sd/- K.Vinod Chandran, Judge vku. ( true copy ) "