Partly allowed

Sheeba Subramaniyan v. Inspecting Assistant Commissioner

Kerala HC19 Feb 2013WP(C)/3644/2013

Case brief

AI extract

What is this about?

The High Court set aside the conditional order imposing security and remittance conditions on the petitioner. It granted an absolute stay on the recovery of the disputed tax differential pending the disposal of the pending appeal before the Tribunal.

What did the court decide?

The order of the Additional 5th Respondent was set aside, and stay on recovery of tax was granted pending appellate disposal.

Sheeba Subramaniyan Vs Inspecting Assistant… — Writ and Judicial Review | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE ANTONY DOMINIC

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TUESDAY, THE 19TH DAY OF FEBRUARY 2013/30TH MAGHA 1934

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WP(C).No. 3644 of 2013 (E)

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PETITIONER(S):

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SHEELA SUBRAMANIAN, AGED 47 YEARS, W/O. SHRI. SUBRAMANIYAN, PROPRIETRESS, GANESH TRADERS, PANT ARCADE, ANGAMALY (RESIDING AT THEKKEKUDY HOUSE, THURAVOOR VILLAGE, THURAVOOR KARA, ALUVA TALUK, ANGAMALY).

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BY ADV. SRI.N.ANILKUMAR

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RESPONDENT(S):

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1. THE INSPECTING ASSISTANT COMMISSIONER, OFFICE OF THE INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAXES, MATTANCHERY, KOCHI - 682 002.

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2. THE COMMERCIAL TAX INSPECTOR, REVENUE RECOVERY, OFFICE OF THE INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAXES, MATTANCHERY, KOCHI - 682 002.

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3. THE DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAX, ERNAKULAM, KOCHI - 682 015.

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4. THE COMMERCIAL TAX OFFICER (I), DEPARTMENT OF COMMERCIAL TAXES, ANGAMALY, THRISSUR DISTRICT - 683 572.

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*ADDL.R5 IMPLEADED:

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R5. THE KERALA VALUE ADDED TAX APPELLATE TRIBUNAL, REPRESENTED BY ITS CHAIRMAN, THEVARA, ERNAKULAM DISTRICT.

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**(ADDL.R5 IS IMPLEADED AS PER ORDER DTD. 19/02/2013 IN I.A.NO.2192/2013)*

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BY SR.GOVERNMENT PLEADER SMT. SHOBA ANNAMMA EAPEN

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Kss

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WPC.NO.3644/2013 E

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT-P1- TRUE COPY OF THE PURCHASE BILL DATED 28/05/2009.

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EXHIBIT-P1(A)- TRUE COPY OF THE PURCHASE BILL DATED 03/06/2009.

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EXHIBIT-P1(B)- TRUE COPY OF THE PURCHASE BILL DATED 22/07/2009.

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EXHIBIT-P2- TRUE COPY OF THE FINAL ASSESSMENT ORDER DATED 19/03/2011 FOR 2009-2010 WITH DEMAND NOTICE.

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EXHIIBT-P3- TRUE COPY OF THE APPEAL MEMORANDUM DATED 20/06/2011 ALONG WITH STAY PETITION FILED BY THE PETEITIONER BEFORE THE ASSISTANT COMMISSIONER (APPEALS).

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EXHIBIT-P4- TRUE COPY OF THE ORDER DATED 02/03/2012 ISSUED BY THE DEPUTY COMMISSIONER (APPEALS)

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EXHIBIT-P5- TRUE COPY OF THE JUDGMENT OF THE SUPREME COURT OF INDIA DATED 07/09/2011 IN C.A 7731/2011.

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EXHIBIT-P6- TRUE COPY OF THE DEMAND NOTICE DATED 28/09/2011 ISSUED BY THE 2ND RESPONDENT.

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EXHIBIT-P7- TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT DATED 04/04/2012 IN IN W.P(C)NO. 8541/2012.

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EXHIBIT-P8- TRUE COPY OF THE APPELLATE ORDER DATED 06/09/2012.

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EXHIBIT-P9- TRUE COPY OF THE ORDER DATED 07/12/2012 IN INT.P. NO. 1074/2012 IN T.A (VAT) 1134/2012.

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RESPONDENTS' EXHIBITS: N I L

/TRUE COPY/

P.A.TO JUDGE

Kss

ANTONY DOMINIC, J. ================ W.P.(C) NO. 3644 OF 2013

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===================

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Dated this the 19^th day of February, 2013

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J U D G M E N T

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Heard the learned counsel for the petitioner and the learned Government Pleader appearing for the respondents.

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Ext.P2 is the assessment order passed against the

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petitioner for the year 2009-10 levying tax at 12.5% on the turnover of margarine. Challenging this order and contending that the tax to be levied is only 4%, petitioner filed appeal, which resulted in Ext.P8 appellate order. Aggrieved by that order, petitioner filed an appeal before the additional 5^th respondent. Along with the appeal, the petitioner also filed a stay petition. In the stay petition, the appellate authority has passed Ext.P9 order granting stay on condition that the petitioner remits 1/3^rd of the disputed tax and furnish security for the balance. It is challenging Ext.P9 order, this writ petition has been filed.

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As already stated, the main dispute that is involved in the appeal is whether tax to be levied on margarine is at 12.5% as done in Ext.P2 or whether it is only at 4% as contended by the petitioner. This issue is pending consideration of this Court in

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:2 :

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WPC.No.3644/13

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several matters and in all those cases, this Court has granted an absolute stay without imposing any conditions. In such circumstances, I am inclined to set aside Ext.P9 and grant stay of recovery of the differential amount payable under Ext.P2 assessment order, pending disposal of the appeal, which the Tribunal is now seized of.

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Therefore, the writ petition is disposed of setting aside Ext.P9 order passed by the additional 5^th respondent and granting stay of recovery of the tax due under Ext.P2 pending disposal of the appeal before the Tribunal.

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Sd/-

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ANTONY DOMINIC, JUDGE

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Sheeba Subramaniyan v. Inspecting Assistant Commissioner

Case brief

What is this about?

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Sheeba Subramaniyan v. Inspecting Assistant Commissioner

Case brief

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