P. DAMODARAN,PROPRIETOR,NEW TECH POLYMERS v. THE SALES TAX OFFICER/COMMERCIAL TAX OFFICER

SMT. THUSHARA JAMES (SR GP) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

22.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No.22377/2014 2 JUDGMENT The petitioner suffered Ext.P2 order of assessment under the provisions of the Kerala General Sales Tax Act (hereinafter referred to as the KGST Act) for the year 2001-02. This order was revised by Ext.P3 order. According to the petitioner, the petitioner is entitled to certain benefits by virtue of Ext.P1 notification issued by the Government of Kerala on 24.07.2009 as S.R.O No.652/2009 under Section 10 of the KGST Act. Since Ext.P2 order was issued on

29.03.2005 and Ext.P3 order was issued on 06.02.2006, the petitioner preferred an appeal on 02.01.2012 along with Ext.P5 application for condonation of delay, claiming the benefit of Ext.P1 notification. The appeal filed by the petitioner was dismissed by Ext.P6 order on the ground of delay. Some mistakes in the first appellate order were corrected by issuing Ext.P7 order dated

04.08.2012. The petitioner thereafter approached the Appellate Tribunal. However, the Appellate Tribunal by Ext.P8 order rejected the appeal on the ground that no appeal could be entertained against an order dismissing an application for condonation of delay by the first Appellate Authority. It is thus that the petitioner is before this Court.

2. The learned Senior Government Pleader submits that W.P.(C)No.22377/2014 3 there is no ground to interfere with Exts.P6, P7 and P8 as those were perfectly in consonance with the law as it stood at the relevant point of time.

3. A similar question came up for consideration before this Court in W.P.(C)No.9709/2015 where this Court, considering Section 55 of the KVAT Act, held as follows:- “3. The learned counsel for the petitioner, in reply, would submit that Section 55 of the KVAT Act has been amended by the Finance Act, 2023. It is submitted that, by virtue of the 2nd proviso added to Section 55 of the KVAT Act, the assessees who had not filed appeals within the time prescribed for any reasons whatsoever, were permitted to file a fresh appeal before the Appellate Authority, on or before 30.9.2023. It is submitted that, in the light of the above provision and considering the fact that this writ petition was pending in this Court from 2015 till today (3.4.2024), the petitioner may be permitted to file an appeal before the first Appellate Authority by excluding the period when this writ petition was pending before this Court for the purposes of the 2nd proviso to Section 55 of the KVAT Act (as incorporated by the Finance Act, 2023).

4. Having heard the learned counsel for the petitioner and the learned Government Pleader, I am of the view that the petitioner can be permitted to file separate appeals against each of the orders of assessment for the assessment years 2005-06 to 2012-13 before the jurisdictional first Appellate Authority considering the fact that this writ petition has been pending from 25.3.2015 till today (3.4.2024). If such appeals are filed by the petitioner before the first Appellate Authority within one month from the date of receipt of a certified copy of this judgment, the same shall be treated as appeals filed within the time permitted under the 2nd proviso to Section 55 of the KVAT Act (incorporated by the Finance Act, 2023) and such appeals shall be heard and disposed of in accordance with the law and after affording an opportunity of hearing to the petitioner.” W.P.(C)No.22377/2014 4

4. In the facts of the present case, Ext.P2 order of assessment is one under the provisions of the KGST Act. However, it is to be noted that the provisions of Section 34 of the KGST Act were also amended by the Finance Act 2023 [in tune with the amendments in the KVAT Act noticed in the judgment of this Court in W.P.(C)No.9709/2015 and where appeals could not be filed for any reason, the same to be filed before 30.09.2023. It is also to be noted that, in the facts of the present case, an appeal was actually filed by the petitioner on 02.01.2012 along with an application for condonation of delay. It is therefore clear that the case of the petitioner will also be covered by the provisions of Section 34 of the KGST Act as amended by the Finance Act, 2023. Though Senior Government Pleader is right in contending that there is no illegality in Exts.P6, P7 and P8 orders with reference to the law as it stood at the relevant point of time, it is to be noted that since the amendments to Section 34 of the KGST Act by virtue of the provisions of the Finance Act, 2023 permitted appeals to be filed even in cases where they have not been so filed upto 30.09.2023, I am of the view that the petitioner cannot be put on a different pedestal. In the result, this writ petition is allowed by setting aside Exts.P6, P7 and P8 orders. The appeal preferred by the petitioner on W.P.(C)No.22377/2014 5

02.01.2012 (Ext.P4) shall stand restored to the file of the 2 nd respondent who shall consider the appeal as one filed in time and dispose of the same on merits after affording an opportunity of hearing to the petitioner. Sd/- GOPINATH P. JUDGE W.P.(C)No.22377/2014 6 APPENDIX OF WP(C) 22377/2014 PETITIONER EXHIBITS EXHIBIT P1 COPY OF THE NOTIFICATION DATED 24/7/2009 ISSUED BY GOVERNMENT OF KERLA SRO NO 652/2009 UNDER SECTION 10 OF THE KGST ACT EXHIBIT P2 COPY OF THE ASSESSMENT ORDER DATED 29/3/2005 FOR THE YEAR 2001-02 UNDER THE KGST ACT ISSUED BY THE FIRST RESPONDENT EXHIBIT P3 COPY OF THE REVISED ASSESSMENT ORDER DATED 6/2/2006 ISSUED BY THE FIRST RESPONDENT EXHIBIT P4 COPY OF THE FIRST APPEAL MEMORANDUM FILED BY THE PETITIONER DATED 2/1/2012 BEFORE THE SECOND RESPONDENT EXHIBIT P5 COPY OF THE DELAY CONDONATION APPLICATION DATED 2/1/2012 BEFORE TBE SECOND RESPONDENT EXHIBIT P6 COPY OF THE FIRST APPEAL ORDER FOR 2001-02 DATED 23/3/2012 PASSED BY THE SECOND RESPONDENT EXHIBIT P7 COPY OF THE ORDER DATED 4/8/2012 ISSUED BY THE 2ND RESPONDENT EXHIBIT P8 COPY OF THE APPELLATE TRIBUNAL ORDER DATED 28/7/2012 ISSUED BY THE SALES TAX APPELLATE TRIBUNAL,THIRD RESPONDENT