The High Court observed that automatic recovery cannot proceed merely because a Tribunal failed to dispose of an appeal within 180 days, especially when the Tribunal was without a Chairman. Relief granted was suspension of recovery till appeal disposal.
Recovery shall be kept in abeyance till the disposal of the appeal before the Tribunal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
WEDNESDAY, THE 11TH DAY OF JANUARY 2017/21ST POUSHA, 1938
WP(C).No. 912 of 2017 (L)
PETITIONER:
L. SATHEEK, AKKAYILA, ERAVIPURAM PO, KOLLAM.
BY ADVS.SRI.HARISANKAR V. MENON SMT.MEERA V.MENON
RESPONDENT(S):
1. THE COMMERCIAL TAX OFFICER (WC), KOLLAM 691 001.
2. THE KERALA VALUE ADDED TAX APPELLATE TRIBUNAL, SASTHAMANGALAM, THIRUVANANTHAPURAM 695 010. REPRESENTED BY ITS SECRETARY.
BY GOVERNMENT PLEADER SRI V.K.SHAMSUDHEEN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.V.
WP(C).No. 912 of 2017 (L)
APPENDIX
PETITIONER(S)' EXHIBITS ----------------------P1 COPY OF ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2009-10. P2 COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT. P3 COPY OF THE ORDER ISSUED BY THE DEPUTY COMMISSIONER (APPEALS) KOLLAM. P4 COPY OF APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. P5 COPY OF ORDER ISSUED BY THE 2ND RESPONDENT. P6 COPY OF PETITION FOR RESTORATION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. RESPONDENT(S)' EXHIBITS NIL -----------------------
/TRUE COPY/
P.A.TO JUDGE
K.V.
K. VINOD CHANDRAN, J.
=====================
W.P.(C)No.912 of 2017 - L
========================= Dated this the 11th day of January, 2017
J U D G M E N T
The petitioner is aggrieved by the fact that the recovery is initiated, for reason of the Tribunal having not disposed of the appeal, in which a stay was granted, within a period of 180 days. Sub-section (6) of Section 60 of the Kerala
Value Added Tax Act, 2003 is relevant and is extracted
herein:-
Notwithstanding that an appeal has been preferred under sub-section (1), the tax shall be paid in accordance with the order of assessment against which the appeal has been preferred:
Provided that the Appellate Tribunal may, in its discretion, give such directions as it thinks fit in regard to the payment of the tax before the disposal of the appeal, if the appellant furnishes sufficient security to its satisfaction in such form and in such manner as may be prescribed:
Provided further that where the Appellate Tribunal has passed an order of stay in an appeal it shall dispose of the appeal within a period of one hundred and eighty days from the date of such order:
Provided also that if such appeal is not so disposed of within the period specified in the second proviso the say order shall stand vacated after the expiry of the said period.
2
W.P.(C)No.912/2017
the disposal of the appeal, on the appellant furnishing sufficient security. The second proviso also provides that the Tribunal shall dispose of the appeal, within a period of 180 days. The difficulty is insofar as the third proviso speaking of stay order being automatically vacated, after the expiry of the such period.
the matter was not disposed of within 180 days. In any event, it is to be noticed that the third proviso is harsh insofar it prejudices the assessees insofar as they being directed to satisfy the demand, even when the appeal filed by them is pending; in which appeal, on a prima faice consideration the Tribunal also had passed directions with regard to the payment of the tax. In such circumstance, merely for the
3
W.P.(C)No.912/2017
reason of the Tribunal having not disposed of the appeal, there can be no automatic recovery proceeded with. With respect to
the petitioner's case, it is directed that the recovery shall be
kept in abeyance, till the disposal of the appeal before the Tribunal.
speedy disposal of appeals by the Tribunal and the failure so to do, not attributable to the assessee cannot cause prejudice to the assessee. The aforesaid judgment shall be forwarded to the Commissioner, to issue necessary directions or to consider
the deletion of the provision, which visits the assessee with unnecessary hardship and prejudice.
The writ petition is disposed of.
Sd/-
K. VINOD CHANDRAN, JUDGE
SB/11/01/2017
// true copy //
P.A to Judge
3 issues framed by the court
Whether recovery initiated after a stay order expired due to the Tribunal's delay beyond 180 days under Section 60(6) of the Kerala VAT Act can proceed.
Whether the mandatory vacation of a stay order after 180 days of Tribunal inaction prejudices the assessee without valid reason.
Whether the High Court can direct suspension of recovery proceedings pending disposal of the appeal despite statutory language.
1 provisions across 1 enactments
L. SATHEEK
THE COMMERCIAL TAX OFFICER (WC), KOLLAM
THE KERALA VALUE ADDED TAX APPELLATE TRIBUNAL
K. VINOD CHANDRAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
