KUNHAPPAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THESE Tax Revision Cases pertain to the years of assessment 1961-1962 and 1962-1963 and the tax levied is sales tax. The short question raised in these cases by the same petitioner is about the correctness of the order passed by the Appellate Tribunal dismissing the appeals before it for the two years as barred by limitation, consequent on the dismissal of the applications for excusing the delay in preferring the appeal. THESE applications were rejected, as we understand the orders, not on the merits but on the ground that these applications did not accompany the memorandum of appeal and that they do not conform to the requirements of the Kerala Sales Tax appellate Tribunal Regulations, 1956. Regulation. 44 (6) is the one that has apparently been relied on and that is in these terms: "where an appeal is presented after the period prescribed in the Act, it shall be accompanied by a petition supported by an affidavit setting forth the facts on which the appellant relies to satisfy the tribunal that he had sufficient cause for not preferring the appeal within such period. Such appeal shall not be entertained unless the Tribunal, after giving an opportunity to the respondent to be heard, is satisfied that the appellant had sufficient cause for not preferring the appeal in time. "

(2.) THE appeal before the Tribunal should have been filed on or before the 26th of August, 1965. THE appeals were filed only on the 5th of September-1966. And the delay petitions were filed on 8th September 1965 and these were disposed of by orders dated 16th October, 1966. It is clear from these facts that the petition for excusing the delay in preferring the appeals did not accompany the appeal memorandum. THE question is whether this defect is so vital as to preclude consideration of the delay applications on the merit. We do not think so. And we are supported in this view by the decision of this court in Thavoob Sait v. Ayyappan reported in 1963 K. L T. 455 which dealt with a rule, R. 26 of the Rules of the High Court of Kerala, 1960. R. 26 is very similarly worded and the relevant part of it is in these terms: "every petition or appeal which is presented after the expiration of the time limited by law, shall be accompanied by a petition to excuse the delay and shall be posted along with such petition before the court. "

(3.) NOR are we impressed with the reasoning that the applications do not conform to the requirements of the regulations. Apparently the defect relied on is the absence of a separate affidavit in support of the application. An application there was, for the one moved before the Tribunal contained a specific prayer and it Was duly stamped. The same piper also contained a sworn statement duly authenticated and the fact that these two happened to be in the same paper cannot make them anything different than a petition supported by an affidavit. No doubt the proper way of filing it is different. This again is not a matter of substance but of pure form and should not have been relied for a dismissal in limini.