K.P. Cars Pvt Ltd vs State Of Kerala And Ors

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 2nd 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.

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 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.

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.

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.

I have found no merits in the contention of the learned 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.

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 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.