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2013 (3) TMI 576 - HC - VAT and Sales TaxPrinciples of natural justice - condonation of delay - Held that - In the facts of this case we notice this is a case where as pointed out by the learned Government Pleader assessment order is passed in the year 2008 appellant did not file return. He did not respond to the notice proposing to assess him. It is in such a case then an appeal is filed with a delay petition. The appeal is filed as already noted on January 14 2013. The writ petition was filed in the space of seven days that is on January 21 2013. in the facts of this case we should modify the judgment of the learned single judge by directing that the application for condonation of delay should be disposed of within a time-limit and if the delay is condoned further direct the stay petition to be disposed of within a particular limit and pass orders on the same and further orders recovery to be kept in abeyance provided that a reasonable amount is remitted.
Issues:
1. Delay in considering stay petition and appeal. 2. Imposition of conditions for stay of recovery proceedings. 3. Applicability of mandamus and principles of natural justice. Issue 1: Delay in considering stay petition and appeal The appellant filed a writ petition seeking relief due to delay in considering exhibit P4 stay petition and exhibit P2 appeal under the Kerala Value Added Tax Act for the year 2007-08. The learned single judge directed the first respondent to consider the delay application and allowed the appellant to remit 50% of the amount to stay recovery proceedings. The appellant argued that denial of the right to a timely hearing compelled them to approach the court, invoking principles of natural justice. The appellant cited a precedent emphasizing the importance of fair and just interim relief decisions. The appellant highlighted inconsistencies in the imposition of conditions for stay petitions, raising concerns about the lack of reasons provided for such conditions. Issue 2: Imposition of conditions for stay of recovery proceedings The learned Government Pleader contended that the appellant failed to produce the assessment order, did not respond to pre-assessment notices, and filed the appeal after a significant delay. The Government Pleader argued that the assessment was justified based on previous assessments and that the delay in filing the appeal was more than three years, contrary to the appellant's claim of 275 days. The court noted that the appellant's prayers for immediate consideration of the stay petition and deferral of recovery proceedings were untenable without addressing the delay issue. The court emphasized the need for the appellate authority to consider and decide on delay petitions before granting stay orders. Issue 3: Applicability of mandamus and principles of natural justice The court clarified that mandamus could be sought when there is a clear failure or refusal by the authority to act. In this case, the appellant swiftly approached the court after filing the appeal, raising questions about the urgency of the situation. The court highlighted that blaming the statutory authority without giving them a reasonable time to consider the stay petition could be premature. The court emphasized that a cause of action for a writ of mandamus arises only when there is a failure to pass orders within a reasonable time after the stay petition is moved. The court modified the judgment by directing the timely disposal of the delay application and stay petition, with recovery proceedings to be stayed upon remittance of a reasonable amount. In conclusion, the judgment addressed the issues of delay in considering the stay petition and appeal, the imposition of conditions for stay of recovery proceedings, and the applicability of mandamus and principles of natural justice. The court emphasized the importance of procedural fairness, timely consideration of petitions, and the need for reasoned decisions in granting stay orders. The modified judgment provided a framework for the expeditious disposal of the delay application and stay petition, ensuring fair treatment for the appellant while safeguarding the interests of the statutory authority.
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