Madhusoodhanan Pillai vs The Deputy Commissioner (Appeals) Commercial Taxes

K. Vinod Chandran, J.—The petitioner is aggrieved with the dismissal of the delay condonation applications, along with the appeals for the assessment years 2001-02, 2002- 03 and 2003-04. Admittedly, the petitioner was conducting a business in the said years. Petitioner contends that subsequently, he had moved to Ernakulam and was not aware of the assessment orders passed. It is clear that the petitioner filed appeals, without any delay condonation petition and subsequently, filed petition for condoning the delay of 61 days, which was dismissed by the 1st Appellate Authority by Ext.P3.

The petitioner having been confronted with recovery proceedings, was before this Court on an earlier occasion in W.P.(C).8001/2012. The petitioner put forward the very same contentions before this Court. This Court recorded the instructions received by the learned Government Pleader, according to which, the assessment orders for the years 2001-02 and 2003-04 were served by affixture on 16.05.2007 and on 10.05.2006 respectively. The order for the year 2002-03 was asserted as served on the petitioner''s wife on 22.06.2004. Since the assessment orders were not challenged by recourse to any of the statutory remedies available to the petitioner, this Court declined to interfere with the recovery proceedings; however leaving liberty to the petitioner to avail of statutory remedies against the assessment orders. The said writ petition was dismissed on 04.04.2012. Obviously, it is after that the appeals were filed on 17.07.2012, as is indicated in Ext.P2.

Going by the recitals in Ext.P2, it is seen that the appeals were filed on 17.07.2012 with certified copies of the assessment orders, however without any application for delay condonation. The certified copies were obtained on 17.04.2012 and according to the petitioner, he had one month''s time, as per the statute for filing an appeal. The delay of 61 days occasioned after the expiry of the one month period, from the date of obtaining the certified copy, was what was sought to be condoned.

It is to be first noticed, that the delay condonation of 61 days sought for before the Appellate Authority is on a mis-apprehension. In fact, this Court had by judgment dated 04.04.2012 in W.P.(C).8001/2012 clearly recorded that the assessment orders were served by affixture and service on the wife of the petitioner on various dates in the years 2004, 2006 and 2007. The limitation to file appeals would necessarily run from the dates on which such service was effected. When filing an appeal after obtaining a certified copy in the year 2012, the petitioner would only be entitled to claim exemption for the time taken, for the issuance of the certified copy; from the date of application for such copy. Hence, the delay caused is not merely 61 days, but from 2004, 2006 and 2007, in the respective years.

The 1st Appellate Authority further noticed in Ext.P2 that, despite the earlier writ petition having been disposed of on 04.04.2012, petitioner caused further delay in filing the appeal. Again, no stay application was filed in the appeal and it was only after the expiry of more than eight months that such an application was made, that too not in the proper form. On the prodding of the Appellate Authority, a proper application was filed. The Appellate Authority elaborately considered the contentions of the petitioner and found that the appellant had received the pre-assessment proposals and that the appellant was conducting the business when the assessment orders were passed. The factum of the petitioner having moved to Ernakulam, and having fallen out with his wife, was found to be not compelling circumstances to condone the delay in filing the appeals. The appellant was found to have evaded service of notice from the Commercial Tax Office with respect to the recovery proceedings. The 1st Appellate Authority found that the petitioner had sufficient knowledge about the assessment orders which were served by way of affixture and by due acknowledgment. The same is also seen recorded in the earlier judgment which has become final. For all the aforesaid reasons, the Appellate Authority dismissed the prayer for condonation of delay. This Court also does not find any compelling circumstance to interfere with the order passed by the 1st Appellate Authority declining exercise of discretion insofar as condonation of delay in the case of the petitioner, for the respective years.

Writ petition dismissed.