P.a. To Judge v. Chitambaresh, J

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.CHITAMBARESH MONDAY, THE 28TH DAY OF OCTOBER 2013/6TH KARTHIKA, 1935 WP(C).No. 26290 of 2013 (I) ---------------------------- PETITIONER(S): -------------------------- SRI.P. K. VASAVANPALANILKUNNATHILMEZHUVELIPATHANAMTHITTA BY ADVS.SRI.ANIL D. NAIR SMT.NIVEDITA A.KAMATH SRI.R.SREEJITH SMT.SULEKHA BEEVI C S SMT.T.S.VIKEESHA RESPONDENT(S): ---------------------------- 1.THE INCOME TAX OFFICER WARD - 3, THIRUVALLA 689 101. 2.INCOME TAX APPELLATE TRIBUNALCOCHIN BENCH 682 016.COCHIN BENCH 682 016. BY SRI.JOSE JOSEPH, SC FOR INCOME TAX THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON28-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER(S) EXHIBITS EXHIBIT P1:TRUE COPY OF THE ASSESSMENT ORDER DATED 10.03.2005. EXHIBIT P2:TRUE COPY OF THE ORDER DATED 10.11.2005. EXHIBIT P3:TRUE COPY OF THE APPEAL MEMORANDUM FILED BEFORE THESECOND RESPONDENTSECOND RESPONDENT EXHIBIT P4:TRUE COPY OF THE STAY PETITION FILED BEFORE THE SECONDRESPONDENTRESPONDENTEXHIBIT P5:TRUE COPY OF THE DELAY CONDONATION PETITION FILEDBEFORE THE SECOND RESPONDENTBEFORE THE SECOND RESPONDENTEXHIBIT P6:TRUE COPY OF THE ORDER DATED 23.08.2013 PASSED BY THESECOND RESPONDENTSECOND RESPONDENT EXHIBIT P7:TRUE COPY OF THE PAPER BOOKS FILED BEFORE THE SECONDRESPONDENTRESPONDENT RESPONDENT(S) EXHIBITS : NIL /TRUE COPY/ P.A. TO JUDGE. V. CHITAMBARESH, J -------------------------------- WP(C) NO. 26290 OF 2013 ------------------------------------ Dated this the 28[th] day of October, 2013 JUDGMENT Ext.P2 appellate order was challenged in Ext.P3 appeal before the second respondent tribunal. The appeal wasaccompanied by Ext.P4 petition for stay and Ext.P5 petition forcondonation of delay. The delay of four years four months andtwo days has been refused to be condoned by Ext.P6 order. Thesame is impugned in this Writ Petition under Article 226 of theConstitution of India. 2.It is seen that proceedings under the NegotiableInstruments Act had also been initiated against the petitioner.The petitioner was reportedly convicted for offence allegedunder Section 138 of the Negotiable Instruments Act. Thepetitioner underwent imprisonment for the period from24.11.2006 till 08.04.2008. It is also stated that the petitionerwas sick before he suffered incarceration as evidenced by themedical certificate produced. WP(C) No. 26290/2013 3.There is ofcourse some laches on the part of thepetitioner in not taking steps to file Ext.P3 appeal in time. Butevery endeavour should be made to have a disposal of the appealon merits rather than non suiting the appellant on technicalgrounds. I am inclined to condone the delay and afford anopportunity to the petitioner to have his appeal heard on merits.This can ofcourse be only on terms taking note of the fact thatthe present liability comes to about `10 lakhs. 4.Ext.P6 order would stand quashed and the delay infiling Ext.P3 appeal before the second respondent would standcondoned. This is subject to the condition that the petitionerremits a sum of `3 lakhs with the first respondent within twomonths. The first instalment shall be paid on or before30.11.2013 and the second instalment on or before 30.012.2013.The challan evidencing the deposit shall be produced before thesecond respondent in which event Ext.P3 appeal shall bedisposed of on merits. 5.Ext.P6 order would remain intact in case thepetitioner commits default in the payment of `3 lakhs within the WP(C) No. 26290/2013 time as directed above. The petitioner shall produce a copy ofthe Writ Petition with the judgment before the secondrespondent for compliance. The Writ Petition is disposed of. ncd V. CHITAMBARESH JUDGE