Kerala High Court Orders VAT Appellate Tribunal to Decide on Delayed Appeal

Case Name:

Abraham Varghese v. Kerala Value Added Tax Appellate Tribunal and Others (WP(C) No. 40278 of 2023)

Key Takeaways:

1. The petitioner, a dealer under the Kerala Value Added Tax Act, filed returns for the assessment year 2009-2010.
2. The commercial tax officer issued a show cause notice and an assessment order with a demand for payment.
3. The petitioner filed an appeal before the Deputy Commissioner (Appeals) - II, but instead of participating in the proceedings on remand, filed an appeal before the Kerala Value Added Tax Appellate Tribunal.
4. The High Court did not find grounds to expedite the appeal proceedings and directed the Tribunal to decide on the application for condoning the delay in filing the appeal within two months.
5. If the delay is condoned, the Tribunal may proceed to hear and pass an appropriate order on the application for stay and the appeal.

Case Synopsis

This is a judgment from the High Court of Kerala at Ernakulam in the case of Abraham Varghese (the petitioner) against the Kerala Value Added Tax Appellate Tribunal and other respondents. The judgment was delivered on December 4, 2023, by the Honorable Mr. Justice Dinesh Kumar Singh.

The petitioner filed a writ petition with the following prayers:

Issue a writ of mandamus or any other appropriate writ, direction, or order and direct Respondent No. 1 (Kerala Value Added Tax Appellate Tribunal) to consider and pass appropriate orders on Exhibit P7 application within a time limit as fixed by the Court.

Issue a writ of mandamus or any other appropriate writ, order, or direction commanding Respondent No. 2 to 4 (Deputy Commissioner (Appeals) - II, Assistant Commissioner, and State Tax Officer) to keep in abeyance enforcement of Exhibit P3 order pending consideration of Exhibit P6 appeal.

Allow this Writ Petition (Civil) with cost to the Petitioner.

The petitioner is a dealer under the provisions of the Kerala Value Added Tax Act, 2003 (KVAT Act) and filed returns for the assessment year 2009-2010, declaring a total sales turnover of Rs.1,24,14,283/-.

The commercial tax officer issued a show cause notice to the petitioner regarding the filed returns and issued an order dated November 26, 2014, rejecting the petitioner’s arguments and raising a total demand of Rs.14,72,170/-, including interest of Rs.5,28,471/-.

The petitioner filed an appeal against the assessment order (Ext.P1) before the second respondent (Deputy Commissioner (Appeals) - II). The first appellate authority partly allowed the appeal and remanded the matter back to the assessing authority to modify the assessment order as found by the first appellate authority. However, instead of participating in the proceedings before the assessing authority on remand, the petitioner filed an appeal before the first respondent (Kerala Value Added Tax Appellate Tribunal). There is a delay of 450 days in filing the appeal.

The Court did not find any ground to direct the Tribunal to expedite the appeal proceedings pending before the State. The petitioner filed the appeal with a delay of more than 400 days. The Tribunal is directed to decide on the application for condoning the delay in filing the appeal within two months. If the delay is condoned, the Tribunal may proceed to hear and pass an appropriate order on the application for stay and the appeal.

In conclusion, the writ petition is disposed of as mentioned above.

FAQ:

Q1: What was the petitioner seeking in the writ petition?

A1: The petitioner sought a writ of mandamus or any other appropriate writ, direction, or order to consider and pass appropriate orders on an application within a fixed time limit, and to keep in abeyance the enforcement of an order pending consideration of an appeal.

Q2: What was the outcome of the writ petition?

A2: The High Court directed the Kerala Value Added Tax Appellate Tribunal to decide on the application for condoning the delay in filing the appeal within two months.

Q3: What was the reason for the delay in filing the appeal?

A3: The petitioner filed the appeal with a delay of more than 400 days, and the Court did not find any grounds to expedite the appeal proceedings.

Q4: What action was taken by the High Court regarding the appeal?

A4: The High Court directed the Tribunal to decide on the application for condoning the delay in filing the appeal within two months. If the delay is condoned, the Tribunal may proceed to hear and pass an appropriate order on the application for stay and the appeal.

1.The present writ petition has been filed with the following prayers:-

(i). Issue a writ of mandamus or any other appropriate writ, direction or order and direct Respondent No. 1 to consider and pass appropriate orders on Exhibit P7 application within a time limit as may be fixed by this Hon’ble Court;

(ii) Issue a writ of mandamus or any other appropriate writ, order, or direction commanding Respondent No. 2 to 4 to keep in abeyance enforcement of Exhibit P3 order pending consideration of Exhibit P6 appeal;

(iii)To allow this Writ Petition (Civil) with cost to the Petitioner

2. The petitioner, a dealer under the provisions of Kerala Value

Added Tax Act, 2003 (‘the KVAT Act’ for short) filed returns for the

assessment year 2009-2010, declaring a total sales turnover of

Rs.1,24,14,283/-.

3. The commercial tax officer issued a show cause notice to the

petitioner in respect of the returns filed by him and also issued an order

dated 26.11.2014, rejecting the arguments advanced by the petitioner

and thereby raising a total demand of Rs.14,72,170/- including an

interest for Rs.5,28,471/-.

4. The petitioner filed an appeal against the said assessment

order (Ext.P1) before the 2nd respondent. The first appellate authority

partly allowed the appeal and remanded the matter back to the

assessing authority to modify the assessment order, effecting the

modification as found by the first appellate authority. It is submitted

2023:KER:77867

WP(C) NO. 40278 OF 2023

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that the petitioner instead of participating in the proceedings before

the assessing authority on remand filed an appeal before the first

respondent. Admittedly, there is a delay of 450 days. However, the

petitioner has approached this Court with this writ petition along with

the prayers as mentioned above.

This Court does not find any ground to direct the Tribunal to

expedite the appeal proceedings pending before the State. The

petitioner was not in a hurry to approach the Tribunal and it has filed

the appeal with more than 400 days delay. The Tribunal is directed to

take decision on the application for condoning the delay in filing the

appeal within a period of two months and if the delay is condoned, the

Tribunal may proceed to hear and pass an appropriate order on an

application of stay as well as the appeal.

The writ petition is disposed of as above.

Sd/-

DINESH KUMAR SINGH

JUDGE