Hotel Karthika vs The Keralaagricultural Income Tax and Sales Tax

K. Vinod Chandran, J.—The petitioner is aggrieved by the dismissal of the second appeal filed before the Tribunal, which dismissal was on the sole ground of delay of 865 days in filing the appeal. Though the affidavit filed in support of the delay condonation application is not produced herein, as revealed from Exhibit P5 order, the explanation for the delay was that a dispute was pending before this Court in a Writ Appeal.

The short facts required for adjudication of the above matter are that for the year 2006-07, the assessee, being a bar hotel, had compounded the tax payment u/s 7, which is in lieu of the charge u/s 5 of the Kerala General Sales Tax Act, 1963 [for brevity "KGST Act"]. The Assessing Officer had compounded at 140% of the actual purchase value of liquor for the previous year; but, however, later found that the assessee who turnover tax for the year 2003-04 far in excess of the purchase value, the assessee was bound to pay compounded tax at 115% of the highest turnover tax. The contention of the assessee was that the said provision was introduced only in July, 2006 when the Bill was introduced in the Assembly. The same was rejected and Exhibit P1 order was passed by the Assessing Officer.

First appeal was filed from the assessment order, which was also rejected by Exhibit P3. The assessee contended before the Tribunal that, since the issue was pending before a Division Bench of this Court, as revealed in Exhibit P4, and there was an order of status-quo granted by the Division Bench, the assessee did not take up the matter in second appeal.

It is to be noticed that Exhibit P4 has not been passed in a proceeding initiated by the assessee herein. The status-quo order continued on 5.9.2011 is in a Writ Appeal of 2007. It is also seen that the Writ Appeals of 2007 were clubbed with Original Petition of 2003 and connected writ petitions of 2007. Hence, necessarily the status-quo order which was continued as per Exhibit P4 order would have been granted earlier. The writ petition which led to the Writ Appeal was filed earlier and was dismissed in 2007. The first appeal was filed in 2008 and was dismissed on 03.02.2009. Even when the first appeal was filed, the said explanation was available. In fact the petitioner has not invoked the extra-ordinary jurisdiction of this Court, but contends that another dealer had obtained status-quo under Article 226 of the Constitution. In such circumstances, the delay sought to be explained cannot be said to be one which was occasioned bona fide. The Tribunal also found the explanation to be unsatisfactory. This Court is not inclined to invoke the extra-ordinary jurisdiction to interfere with the refusal of the Tribunal to exercise discretion.

Writ petition stands dismissed. No costs.