K.P.Cars Pvt Ltd vs State Of Kerala
2021 Latest Caselaw 1569 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                 THE HONOURABLE MR. JUSTICE A.M.BADAR

     FRIDAY, THE 15TH DAY OF JANUARY 2021 / 25TH POUSHA, 1942

                      WP(C).No.28287 OF 2020(I)


PETITIONER:

               K.P.CARS PVT LTD
               HAVING REGISTERED OFFICE ADDRESS AT SUIT NO.205, 2ND
               FLOOR, PIONEER TOWERS, SHANMUGHAM ROAD, ERNAKULAM-682
               031, REPRESENTED THROUGH BHARATH K.PATEL, DIRECTOR
               AND AUTHORIZED REPRESENTATIVE OF M/S. K.P.PRIVATE
               LIMITED, AGED 54 YEARS, S/O.PATEL KANTILAL PRANLAL,
               RESIDING AT XXX/626 B, KRISHNA NIVAS, WARRIAM ROAD,
               ERNAKULAM-682 011.

               BY ADV. SRI.JOLLY JOHN

RESPONDENTS:

      1        STATE OF KERALA
               REPRESENTED BY ITS SECRETARY TO GOVERNMENT, TAX
               DEPARTMENT, SECRETARIAT, TRIVANDRUM.

      2        DEPUTY COMMISSIONER (APPEALS) III
               DEPARTMENT OF COMMERCIAL TAXES, COMMERCIAL TAX
               COMPLEX, ERNAKULAM, KOCHI-682 018.

      3        ASSISTANT COMMISSIONER (APPEALS),
               DEPARTMENT OF COMMERCIAL TAXES, COMMERCIAL TAX
               COMPLEX, ERNAKULAM, KOCHI-682 018.

      4        INTELLIGENCE OFFICER, SQUAD VIII,
               DEPARTMENT OF COMMERCIAL TAXES, COMMERCIAL TX
               COMPLEX, ERNAKULAM, KOCHI-682 018.



               GP- SMT. THUSHARA JAMES

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
15.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.28287 OF 2020(I)

                                   2

                             JUDGMENT

Dated this the 15th day of January 2021

Heard both sides. By this petition, the petitioner is asking for

directing the 4th respondent to issue certified copy of Ext.P1 Penalty

Order with the further prayer for directing the 2 nd respondent to

consider and dispose of the appeal at Ext.P2 on merits by setting aside

the order of dismissal of the said appeal (Ext.P12) by which it is noted

that the appeal is preferred without furnishing the original of the

impugned order.

2. Heard the learned counsel appearing for the petitioner. He

drew my attention to the acknowledgment at Ext.P3 in respect of filing

of the appeal at Ext.P2, so also the notice of hearing of the stay

petition at Ext.P4. The learned counsel for the petitioner further

pointed out that Ext.P5 order granting conditional stay in favour of the

petitioner in the appeal (Ext.P2) and submits that the order at Ext.P5

itself shows that the Appellate Authority had perused the order

impugned in the appeal (Ext.P2) and then proceeded to grant stay in

favour of the petitioner. The learned counsel for the petitioner further

drew my attention to his communications at Ext.P7 and P10 dated

23.01.2018 and 05.02.2018 by which the petitioner has

communicated to the Appellate Authority that on perusal of these files WP(C).No.28287 OF 2020(I)

of the appeal, it is found that the original of the order impugned in the

appeal is missing. The petitioner by these communications had

informed the Appellate Authority that they will be getting certified

copy of the order impugned in the appeal and would place on record of

the appeals.

3. The learned counsel for the petitioner submitted that

without adhering to the request made by the petitioner vide

communication at Exts.P7 and P10, the learned Appellate Authority

proceeded to hear the appeal and was pleased to reject the same by

recording that the appeal has been preferred without furnishing the

original of the impugned order. It is stated by the learned counsel for

the petitioner that the petitioner has now received the certified copy of

the order impugned in the appeal and he would place the same on

record of the appeal.

4. Learned Government Pleader opposed the petition by

contending that as per provisions of Rule 72 of the Kerala VAT Rules,

the appeal has to be presented in From No. 29 in duplicate with the

original of the impugned order and as the original order was not filed

by the petitioner, as recorded in the impugned order at Ext.P12, the

appeal is rightly rejected.

5. I have found no merits in the contention of the learned WP(C).No.28287 OF 2020(I)

Government Pleader for the reason that there is acknowledgment

regarding receipt of the appeal by the department. The appeal has

been numbered instead of keeping it for removal of any defects. The

appeal was of the year 2013 and it remained pending till dismissal,

virtually for alleged default on 25.01.2018. The application for stay

moved by the petitioner before the Appellate Authority was allowed by

a conditional order and that order reflects perusal of the impugned

order by the Appellate Authority. If really, the appellant has not

produced order in original before the Appellate Authority, the Appellate

Authority ought not to have granted stay as prayed by the petitioner.

Bonafides of the appellant are reflected from record. Even before

passing the impugned order by communications at Ext.P7 and P10, he

informed the Appellate Authority that the impugned order is found

missing from the file of the Appeal. If this was mis-statement of the

fact, the Appellate Authority was expected to intimate the same to the

petitioner which was not seen to have been done. The petitioner had

also applied for certified copy of the order impugned in the appeal.

6. In the light of foregoing discussion, the Appellate Authority

was not justified in hastily passing the order by which the statutory

appeal came to be dismissed virtually in default. Therefore, the

impugned order at Ext.P12 cannot be sustained and hence the WP(C).No.28287 OF 2020(I)

following order.

The petition is allowed. The impugned order at Ext.P12 is

quashed and set aside. The petitioner is permitted to place on record

of the Appellate Authority, the certified copy of the order in original

within a period of two weeks from today. On filing of the certified copy

of the order in original before the Appellate Authority, the Appellate

Authority shall proceed to decide the appeal according to law.

Sd/-

                                                    A.M.BADAR

Nsd                                                  JUDGE
//true copy//
PA to Judge
 WP(C).No.28287 OF 2020(I)




                            APPENDIX
PETITIONER'S/S EXHIBITS:

EXHIBIT P1           THE TRUE COPY OF THE ORDER DATED 23.01.2012
                     NO.665(A) 11-12.

EXHIBIT P2           THE TRUE COPY OF THE APPEAL WITHOUT

ANNEXURES FILED BEFORE 2ND RESPONDENT BY THE PETITIONERS.

EXHIBIT P3 THE TRUE COPY OF THE ACKNOWLEDGMENT ENDORSED AS RECEIVED ON 03.12.2013 BY THE REGISTRY WITH THE SEAL AFFIXED THEREIN.

EXHIBIT P4 TRUE COPY OF THE NOTICE DATED 18.01.2014 INTIMATING THE DATE OF HEARING OF THE STAY PETITION.

EXHIBIT P5 THE TRUE COPY OF ORDER NO.KVATA 3553/13 DATED 04.02.2014 OF THE 3RD RESPONDENT.

EXHIBIT P6 TRUE COPY OF THE NOTICE RECEIVED ON 01.12.2017 INTIMATING THE DATE OF HEARING OF THE APPEAL.

EXHIBIT P7 THE TRUE COPY OF REGISTERED LETTER DATED 23.01.2018 ADDRESSED TO THE 2ND RESPONDENT.

EXHIBIT P8 THE TRUE COPY OF THE ACKNOWLEDGMENT CARD FOR THE REGISTERED LETTER TO THE 2ND RESPONDENT.

EXHIBIT P9 TRUE COPY OF APPLICATION DATED 01.02.2018 FOR CERTIFIED COPY OF EXHIBIT P1 ORDER FILED BY THE PETITIONER BEFORE 4TH RESPONDENT.

EXHIBIT P10 THE TRUE COPY OF LETTER DATED 05.02.2018 ADDRESSED TO 2ND RESPONDENT.

EXHIBIT P11 THE TRUE COPY OF THE ACKNOWLEDGMENT EVIDENCING THE RECEIPT OF THE LETTER BY THE OFFICE OF THE 2ND RESPONDENT .

EXHIBIT P12 THE TRUE COPY OF THE IMPUGNED ORDER DATED 25.01.2018 OF THE 2ND RESPONDENT.