Pratheep Vijayan, M/s Vijaya Cashew V. Assistant Commissioner, Commercial Taxes, Special Circle, Asramom, Kollam and The Intelligence Officer, Squad No.II, Commercial Taxes, Kollam at Kottarakkara and The Kerala Value Added Tax/Agricultural Income Tax & Sale Tax Appellate Tribunal, Additional Bench, Sasthamangalam, Thiruvananthapuram

OP (TAX)/45/2016

AI Insights

The case involves Pratheep Vijayan, representing M/s Vijaya Cashew, who challenged the orders of the Kerala Value Added Tax/Agricultural Income Tax and Sales Tax Appellate Tribunal regarding the dismissal of his appeal and the condonation of delay in filing the appeal. The original assessment order was issued for the year 1997-98, and subsequent appeals and applications for condonation of delay were filed but dismissed due to procedural lapses, including the failure to produce the power of attorney and inadequate explanation for the delay. The High Court's decision focused on the procedural correctness of the Tribunal's actions and the lack of a satisfactory explanation for the significant delay in filing the appeal.

• Counselvise Citation: [2016] 140 COUNSELVISE.COM (IT) 799105 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 29-07-2016
• Assessment Year: misc
• Laws Referred To: Kerala Value Added Tax Act
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: SOBHA EAPEN
• Assessee Lawyers: S KUMAR; K S NAIR; K V JAYAPRAKASH
• Keywords: Appeal Dismissal; Assessment Order; Condonation of delay; Power of attorney
• Section: 147; 148; 143(3); 153A; 68

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE SMT. JUSTICE P.V.ASHA FRIDAY, THE 29TH DAY OF JULY 2016/7TH SRAVANA, 1938 OP (TAX).No. 45 of 2016 (Q) ---------------------------- AGAINST ORDER OF THE KERALA VALUE ADDED TAX/AGRL. INCOME TAX & SALES TAX APPELLATE TRIBUNAL ADDITIONAL BENCH, SASTHAMANGALAM, THIRUVANANATHAPURAM - 695 010 IN INTP. NO.15/13 DTD. 14-08-2014, T.A. 18/2013 DTD.14-08-2014 IN RP.1/14 IN INT. P. NO.15/13 & TA. NO.18/2013 DTD.12-03-2015 ...... PETITIONER(S): ------------- PRATHEEP VIJAYAN, M/S VIJAYA CASHEW, PERUMANOOR P.O., VALAKOM, KOLLAM DISTRICT. BY ADVS.SRI.S.ANIL KUMAR (TRIVANDRUM) SRI.K.S.HARIHARAN NAIR SRI.K.V.JAYAPRAKASH RESPONDENT(S): -------------- 1. ASSISTANT COMMISSIONER, COMMERCIAL TAXES, SPECIAL CIRCLE, ASRAMOM, KOLLAM-691 002. 2. THE INTELLIGENCE OFFICER, SQUAD NO.II, COMMERCIAL TAXES, KOLLAM AT KOTTARAKKARA-695 124. 3. THE KERALA VALUE ADDED TAX/AGRL. INCOME TAX & SALE TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH, SASTHAMANGALAM, THIRUVANANTHAPURAM-695 010. BY GOVERNMENT PLEADER SMT.SOBHA ANNAMMA EAPEN THIS OP TAX HAVING COME UP FOR ADMISSION ON 29-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: msv/ OP (TAX).No. 45 of 2016 (Q) --------------------------- APPENDIX PETITIONER(S)' EXHIBITS ----------------------- P1 COPY OF THE AGREEMENT DATED 20.01.1997 WITH M/S RAJKUMAR IMPEX PRIVATE LIMITED. P2 COPY OF PENALTY ORDER DATED 28.04.2001 ISSUED BY THE 2ND RESPONDENT. P3 COPY OF THE ASSESSMENT ORDER DATED 20.01.2003 OF THE 1ST RESPONDENT FOR THE YEAR 1997-98. P4 COPY OF ORDER DATED 5.02.2005 OF THE DY. COMMISSIONER (APPEALS), KOLLAM. P5 COPY OF APPEAL MEMORANDUM AGAINST EXT. P4 ORDER FILED BEFORE THE 3RD RESPONDENT. P5(A) COPY OF PETITION FOR CONDONING DELAY FILED ALONG WITH EXT. P5 APPEAL. P6 COPY OF ORDER DATED 14.08.2014 ISSUED BY THE 3RD RESPONDENT DISMISSING EXT. P5(A). P6(A) COPY OF ORDER DATED 14.08.2014 ISSUED BY THE 3RD RESPONDENT DISMISSING EXT P5 APPEAL. P7 COPY OF REVIEW PETITION FILED AGAINST EXT. P6. P7(A) COPY OF REVIEW PETITION FILED AGAINST EXT. P6(A). P8 COPY OF COMMON ORDER DATED 12.03.2015 ISSUED BY THE 3RD RESPONDENT DISMISSING EXT. P7 AND EXT P7(A). P9 COPY OF POWER OF ATTORNEY DTD.19.2.2013. P10 COPY OF AFFIDAVIT DTD.2.12.2014 OF SRI.K.S.PRABHAKARAN, ADVOCATE. RESPONDENT(S)' EXHIBITS: ------------------------ NIL //TRUE COPY// P.S.TO JUDGE Msv/ ANTONY DOMINIC & P.V.ASHA, JJ. O.P.(Taxes).No.45 of 2016 Dated this the 29th day of 2016 JUDGMENT Antony Dominic, J. In this Original Petition the assessee is challenging Exts.P6 and P8 orders passed by the Kerala Value Added Tax/Agricultural Income Tax and Sales Tax Appellate Tribunal, Additional Bench, Thiruvananthapruam. Ext.P6 is an order passed on Ext.P5(a), an application filed by the petitioner for condonation of delay of more than eight years in filing Ext.P5 appeal. Ext.P8 is an order passed on an application filed by the assessee seeking review of Ext.P6 order. 2. We heard the learned counsel appearing for the petitioner and the learned Government Pleader appearing for the respondents. 3. Ext.P3 order of assessment was passed against the assessee for the assessment year 1997-98. By Ext.P4 order, the assessment order was confirmed by the first appellate authority. That order is dated 5.2.2005. It was aggrieved by Ext.P4 order, O.P.(Taxes).No.45 of 2016 :2: the power of attorney holder of the assessee filed Ext.P5 appeal and Ext.P5(a) application for condonation of delay. The appeal and the petition are dated 11.3.2013. Ext.P5(a) application for condonation of delay was dismissed by the Tribunal as per Ext.P6 order. 4. A reading of Ext.P6 order shows that two reasons are assigned for dismissing the application for condonation of delay; first one is that the petition was filed by the power of attorney holder of the assessee without producing the power of attorney before the Tribunal. The fact that the power of attorney was not produced before the Tribunal is admitted by the parties. Therefore, the Tribunal cannot be faulted for not entertaining the application and the appeal in the absence of the power of attorney on the strength of which the appeal and the petition were filed. 5. In this context the Tribunal has also taken note of the fact that it was the contention of the power of attorney holder that he received the copy of the order from the counsel who was O.P.(Taxes).No.45 of 2016 :3: appearing for the assessee only on 25.3.2013. As rightly found by the Tribunal this knowledge of the power of attorney holder is merely hearsay and such an affirmation based on hearsay knowledge could not have been accepted by the Tribunal, in the absence of an affidavit filed by the assessee himself. Law is trite a power of attorney holder cannot swear on any matter within the personal knowledge of his principal. 6. The second reason stated by the Tribunal is that the delay has not been properly explained. We also agree with the Tribunal that when a copy of the order of the first appellate authority was communicated to the counsel who appeared for the assessee, such services of the counsel is deemed to be service on the assessee himself. Therefore even if it is true that the assessee or his power of attorney holder obtained the copy of the order from the counsel only in March 2013, that will not save the assessee from the guilt of delay, from the date of service of the order on the counsel for the assessee. Further, even if the counsel was unwell as contended, the assessee had the O.P.(Taxes).No.45 of 2016 :4: responsibility to contact the counsel and take steps for filing the appeal. 7. In such a situation, we agree with the Tribunal that the assessee had failed in offering any satisfactory explanation for the long and inordinate delay of more than 8 years in filing this appeal. Ext.P8 order passed by the Tribunal on the application filed for review of Ext.P6, also does not spell out any illegality of interference. We therefore not find any illegality in the order impugned in the original petition. The original petition fails and accordingly dismissed. sd/- ANTONY DOMINIC JUDGE sd/- P.V.ASHA JUDGE rkc "