Wp(C)/7211/2012 Of M/S.hotel Karthika v. The Kerala Agricultural Income Tax

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. 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 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO DEPARTMENT OF REVENUE SECRETARIAT, THIRUVANANTHAPURAM-695001. 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: 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. 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.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.FIRST RESPONDENT TRIBUNAL DATED 21.1.2012. EXHIBIT P6 : TRUE COPY OF THE ORDER IN T.A. No. 67/2011 ON THE FILE OF THEFIRST RESPONDENT TRIBUNAL DATED 21.1.2012. FIRST RESPONDENT TRIBUNAL DATED 21.1.2012. RESPONDENTS' EXHIBITS :NIL. // TRUE COPY // P.A. TO JUDGE DMR/- ------------------------------------- W.P.(C).No.7211 of 2012-B ------------------------------------- Dated this the 03[rd] day of July, 2014 JUDGMENT The petitioner is aggrieved by the dismissal of the second appeal filed before the Tribunal, which dismissal was onthe sole ground of delay of 865 days in filing the appeal. Thoughthe affidavit filed in support of the delay condonation application isnot produced herein, as revealed from Exhibit P5 order, theexplanation for the delay was that a dispute was pending beforethis Court in a Writ Appeal. 2. The short facts required for adjudication of the abovematter are that for the year 2006-07, the assessee, being a barhotel, had compounded the tax payment under Section 7, which isin lieu of the charge under Section 5 of the Kerala General SalesTax Act, 1963 [for brevity “KGST Act”]. The Assessing Officer hadcompounded at 140% of the actual purchase value of liquor for theprevious year; but, however, later found that the assessee whoturnover tax for the year 2003-04 far in excess of the purchasevalue, the assessee was bound to pay compounded tax at 115% of the highest turnover tax. The contention of the assessee was thatthe said provision was introduced only in July, 2006 when the Billwas introduced in the Assembly. The same was rejected and ExhibitP1 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 contendedbefore the Tribunal that, since the issue was pending before aDivision Bench of this Court, as revealed in Exhibit P4, and therewas an order of status-quo granted by the Division Bench, theassessee did not take up the matter in second appeal. 4. It is to be noticed that Exhibit P4 has not been passed the highest turnover tax. The contention of the assessee was thatthe said provision was introduced only in July, 2006 when the Billwas introduced in the Assembly. The same was rejected and ExhibitP1 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 contendedbefore the Tribunal that, since the issue was pending before aDivision Bench of this Court, as revealed in Exhibit P4, and therewas an order of status-quo granted by the Division Bench, theassessee 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-quoorder continued on 5.9.2011 is in a Writ Appeal of 2007. It is alsoseen that the Writ Appeals of 2007 were clubbed with OriginalPetition of 2003 and connected writ petitions of 2007. Hence,necessarily the status-quo order which was continued as per ExhibitP4 order would have been granted earlier. The writ petition whichled 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 03.02.2009. Even when the first appeal was filed, the saidexplanation was available. In fact the petitioner has not invoked theextra-ordinary jurisdiction of this Court, but contends that anotherdealer had obtained status-quo under Article 226 of the Constitution.In such circumstances, the delay sought to be explained cannot besaid to be one which was occasioned bona fide. The Tribunal alsofound the explanation to be unsatisfactory. This Court is not inclinedto invoke the extra-ordinary jurisdiction to interfere with the refusalof the Tribunal to exercise discretion. Writ petition stands dismissed. No costs. vku. Sd/-K.Vinod Chandran, Judge ( true copy )