Quashed

M/S. Soorya International v. the Deputy Commissioner

Kerala HC13 Jan 2016WP(C)/1198/2016

Case brief

AI extract

What is this about?

The Kerala High Court quashed an order by the Assistant Commissioner requiring the petitioner to deposit 40% of the tax before granting stay of recovery. The Court directed the authority to reconsider the stay petition after affording an opportunity of hearing and to provide reasons.

What did the court decide?

Order directing payment of 40% deposit as condition for stay was quashed; authority directed to reconsider stay petition within one month after hearing and pass fresh orders.

M/S. Soorya International Vs the Deputy Commissioner — Writ and Judicial Review | Kerala HC (2016)

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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 A.K.JAYASANKARAN NAMBIAR

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WEDNESDAY, THE 13TH DAY OF JANUARY 2016/23RD POUSHA, 1937

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WP(C).No. 1198 of 2016 (Y)

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PETITIONER(S):

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M/S. SOORYA INTERNATIONAL, KAVANAD P.O., KOLLAM DISTRICT-691 003, REPRESENTED BY ITS MANAGING PARTNER B.MANOJ KUMAR.

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BY ADVS.SRI.MOHAMMED RAFIQ

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SRI.S.AJAYGHOSH KUMAR

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RESPONDENT(S):

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1. THE DEPUTY COMMISSIONER (APPEALS)-I, COMMERCIAL TAXES, KOLLAM-691 002.

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2. THE ASSISTANT COMMISSIONER (ASSESSMENT), COMMERCIAL TAXES, SPECIAL CIRCLE, KOLLAM-691 013.

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3. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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BY GOVERNMENT PLEADER SMT.LILLY K.T.

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 1198 of 2016 (Y)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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P1 : COPY OF ASSESSMENT ORDER DTD.14.7.2015 RELATING TO THE YEAR 201213 PASSED BY THE 2ND RESPONDENT UNDER SECTION 25(1) OF THE KVAT ACT, 2003.

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P2 : COPY OF THE APPEAL DTD.22.7.2015 RELATING TO THE ASSESSMENT FOR THE YEAR 2012-13 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.

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P3 : COPY OF THE STAY PETITION DTD.22.7.2015 IN THE APEAL RELATING TO THE YEAR 2012-13 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.

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P4 : COPY OF THE ORDER NO.KVATA (KLM)538/15 DTD.9.12.2015 PASSED BY THE 1ST RESPONDENT.

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RESPONDENT(S)' EXHIBITS

NIL.

/ TRUE COPY /

P.S. TO JUDGE

A.K.JAYASANKARAN NAMBIAR, J.

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W.P.(C). No. 1198 of 2016

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===================================================== Dated this the 13^th day of January, 2016

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JUDGMENT

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The petitioner is an assessee under the Kerala Value Added Tax Act, 2003. Against Ext.P1 assessment order for the assessment year 2012-2013, the petitioner had preferred Ext.P2 appeal before the 2^nd respondent. Along with the appeal, the petitioner had also preferred Ext.P3 stay petition. The 2^nd respondent has now passed Ext.P4 order directing the petitioner to pay 40% of the amount as a condition for the grant of stay against recovery of the balance amounts confirmed against the petitioner vide the assessment order.

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In the writ petition, the petitioner impugns the said conditional orders of stay, inter alia, on the ground that the 2^nd respondent had not exercised his discretion validly while passing the said order.

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I have heard the learned counsel appearing for the petitioner as also the learned Government Pleader appearing for the respondents.

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On a consideration of the facts and circumstances of the

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-2-

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W.P.(C). No. 1198 of 2016

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case and the submissions made across the bar, I dispose the writ petition with the following directions:-

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(i) In Ext.P4 order, the 2^nd respondent does not state reasons as to why the petitioner was required to deposit the amounts as a condition for the grant of stay. This Court has held in Archana Agencies v. Commercial Tax Officer [2014(2) KLT 715] that an authority considering a stay petition is bound to give reasons even while granting conditional stay.

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(ii) Ext.P4 order is quashed and the 2^nd respondent is directed to reconsider the matter and pass fresh orders in the stay petitions filed by the petitioner, within one month from the date of receipt of a copy of this judgment after affording an opportunity of hearing to the petitioner.

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(iii) Recovery steps, initiated against the petitioner shall be kept in abeyance till such time as fresh orders are passed by the 2^nd respondent, as directed above, and communicated to the petitioner.

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Sd/- A.K.JAYASANKARAN NAMBIAR JUDGE

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das /13.01.2016

M/S. Soorya International v. the Deputy Commissioner

Case brief

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M/S. Soorya International v. the Deputy Commissioner

Case brief

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