Case Law Details
K.J. Jagath Simhan Vs State Tax Officer (Kerala High Court)
Kerala High Court directed the First Appellate Authority to entertain the appeals preferred by the appellant against assessment order after collecting amounts due towards Kerala Legal Benefit Fund.
Facts- The challenge to the assessment orders in the writ petitions were only incidental. It is pointed out that while appeals had been preferred against the said assessment orders, the First Appellate Authority had dismissed the appeals preferred against the assessment orders solely on the ground that the required amounts towards the Kerala Legal Benefit Fund had not been paid by the appellant as a pre-condition for maintaining the appeals before the First Appellate Authority.
Conclusion- Disposed these Writ Appeals by directing the First Appellate Authority to entertain the appeals preferred by the appellant against the orders of assessment, that were impugned in the writ petitions, after collecting the amounts due towards the Kerala Legal Benefit Fund. If the appellant cures the defect in relation to the payment of amounts towards the Kerala Legal Benefit Fund, within a period of three weeks from today, then the Appellate Authority shall treat the appeals as properly filed and proceed to adjudicate the same on merits, after hearing the appellant . The Appellate Authority shall thereafter pass final orders in the appeals, within a period of three months, from the date of receipt of the amounts towards the Kerala Legal Benefit Fund.
FULL TEXT OF THE JUDGMENT/ORDER OF KERALA HIGH COURT
These Writ Appeals impugn the common judgment dated 06.02.2023 of the learned Single Judge. The learned Single Judge dismissed the three writ petitions, following the judgment of the Division Bench of this Court in Writ Appeal No.1035 of 2019 and connected matters.
2. The learned Single Judge, while dismissing the writ petitions, noted that although a Special Leave Petition had been preferred before the Supreme Court, the Court while admitting the said Special Leave Petition against the judgment of the Division Bench of this Court, did not stay the operation of the judgment. It is under those circumstances that the learned Single Judge also dismissed the writ petitions.
3. When these Writ Appeals came up for admission before us, we informed the learned counsel appearing for the appellant that, in view of the fact that the Supreme Court had not granted a stay of operation of the judgment of the Division Bench of this Court, we would be constrained to follow the said judgment and hence the decision in these Writ Appeals would be no different from the decision taken by the learned Single Judge in the writ petitions. At that stage, the learned counsel for the appellant in these Writ Appeals pointed out that the writ petitions essentially challenged the power of the State Government to reopen an assessment, after the coming into force of the GST regime and the cessation of the erstwhile KVAT regime in the State. The challenge to the assessment orders in the writ petitions were only incidental. It is pointed out that while appeals had been preferred against the said assessment orders, the First Appellate Authority had dismissed the appeals preferred against the assessment orders solely on the ground that the required amounts towards the Kerala Legal Benefit Fund had not been paid by the appellant as a pre-condition for maintaining the appeals before the First Appellate Authority. The learned counsel prays that in the event of not interfering with the judgment of the learned Single Judge impugned in these Writ Appeals, he may be permitted to remit the required amounts towards the Kerala Legal Benefit Fund for the purposes of maintaining the appeals before the First Appellate Authority, thereby curing the defects noticed by the said Authority in Ext.P2 order produced along with the writ petitions. That would then enable the First Appellate Authority toi consider the matter on merits.
4. On a consideration of the said request of the learned counsel appearing for the appellant, we find that no prejudice will be caused to the revenue by directing the First Appellate Authority to consider the appeals preferred by the appellant in these Writ Appeals, on merits.
Accordingly, while upholding the judgment of the learned Single Judge impugned in the writ appeals to the extent it finds against the appellant on the issue of power of the State Government to reopen an assessment subsequent to the Constitution Amendment (101st Amendment Act), we dispose these Writ Appeals by directing the First Appellate Authority (the 2nd respondent) in these Writ Appeals to entertain the appeals preferred by the appellant against the orders of assessment, that were impugned in the writ petitions, after collecting the amounts due towards the Kerala Legal Benefit Fund. If the appellant cures the defect in relation to the payment of amounts towards the Kerala Legal Benefit Fund, within a period of three weeks from today, then the Appellate Authority shall treat the appeals as properly filed and proceed to adjudicate the same on merits, after hearing the appellant . The Appellate Authority shall thereafter pass final orders in the appeals, within a period of three months, from the date of receipt of the amounts towards the Kerala Legal Benefit Fund.
The Writ Appeals are disposed as above.
Author Bio
