Allowed

M/S Pathiyara Buildware, v. the Assistant Commissioner (Deputation)

Kerala HC6 Dec 2019WA/2452/2019

Case brief

AI extract

What is this about?

The High Court allowed this appeal challenging an interim order requiring a 30% deposit for stay of recovery. The court held Section 55's 20% rule does not apply to second appeals under Section 60. However, exercising equity due to hardship, the stayed condition was reduced to a 20% deposit.

What did the court decide?

Modified the impugned interim order to grant interim stay of recovery of disputed amounts upon deposit of 20% of the total amount in dispute and execution of a bond for the balance.

M/S Pathiyara Buildware, Vs the Assistant Commissioner (Deputation) — Kerala HC (2019) — LawSathi Research

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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 C.K.ABDUL REHIM

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THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

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FRIDAY, THE 06TH DAY OF DECEMBER 2019 / 15TH AGRAHAYANA, 1941

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WA.No.2452 OF 2019

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AGAINST JUDGMENT IN WP(C) 30670/2019(G) OF HIGH COURT OF KERALA

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APPELLANT/PETITIONER:

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M/S PATHIYARA BUILDWARE,

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NEAR HOTEL WHITE CITY, NORTH PARAVUR, ERNAKULAM, PIN-683 513, REPRESENTED BY PROPRIETOR. PRADEEP KUMAR D.

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BY ADV. SRI.P.M.POULOSE

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RESPONDENTS/RESPONDENTS 1 TO 3 & 5:

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1 THE ASSISTANT COMMISSIONER (DEPUTATION) DEPARTMENT OF COMMERCIAL TAXES, SPECIAL CIRCLE, MATTANCHERY, ALUVA, PIN-682 002.

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2 THE DEPUTY COMMISSIONER (APPEALS), SALES TAX COMPLEX, THEVARA, ERNAKULAM-682 013.

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3 THE INSPECTING ASSISTANT COMMISSIONER, AUTHORISED OFFICER, COMMERCIAL TAXES, MATTANCHERRY, COCHIN-682 002.

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4 THE BRANCH MANAGER, BANK OF INDIA, EZHIKKARA BRANCH, ERNAKULAM-683513.

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5 THE APPELLATE TRIBUNAL (KVAT), ERNAKULAM-682 015, REPRESENTED BY ITS CHAIRMAN.

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OTHER PRESENT:

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SR.GP.SRI. MOHAMMED RAFIQ

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.A. No.2452/2019

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C.K. ABDUL REHIM

T.V. ANILKUMAR, JJ.

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-----------------------------------------------------

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W.A. No. 2452 OF 2019

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------------------------------------------------------- Dated this the 6^th day of December, 2019

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J U D G M E N T

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Abdul Rehim, J.

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The writ petitioner in W.P.(C) 30670/2019 is the appellant herein, challenging judgment of the Single Judge, dated 14^th November, 2019. The respondents herein are the respondents in the writ petition.

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Ext.P9 interim order passed by the Kerala Value

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Added Tax Appellate Tribunal, Additional Bench, Ernakulam in INTP No.4/2019 in T.A.(VAT) No.11/2019, was under challenge in the writ petition. The appeal pending before the Tribunal is filed in challenge of the assessment completed against the appellant with respect to the year 2011-2012, under the Kerala

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Value Added Tax Act(hereinafter referred to as 'the KVAT Act').

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W.A. No.2452/2019

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The assessment finalized against the appellant was challenged in an appeal filed before the first appellate authority, the Deputy Commissioner(Appeals). Being dissatisfied with the relief granted by the first appellate authority, the second appeal was filed before the Tribunal. An interim application was filed before the Tribunal seeking stay of recovery of the disputed amounts, pending disposal of the appeal. While disposing the application seeking interim stay, the Tribunal considered the rival contentions raised on the points in dispute. The Tribunal found that, in view of the concurrent findings of the authorities below, stay can be granted only on payment of 30% of the existing demand and on execution of bond for the balance amount due. The leaned Single Judge found that, the appellate Tribunal has given reasons and therefore there exist no jurisdictional error or erroneous exercise of the discretion vested on the appellate Tribunal. Accordingly the writ petition was dismissed. However, time stipulated for deposit of 30% of the amount was extended. It is against dismissal of the writ petition, the above writ appeal

W.A. No.2452/2019

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is filed.

Sri.P.M. Poulose, learned counsel appearing for the

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appellant contended that, the principle underlying in the second proviso to sub-section(4) of Section 55 of the KVAT Act was not taken into consideration by the Tribunal, while insisting upon for payment of 30% of the tax. The said proviso is to the effect that, where the appellant remits 20% of the disputed amount of tax, along with collected tax if any, further proceedings towards recovery shall stand stayed till the disposal of the appeal. But learned Government Pleader appearing on behalf of the respondents herein pointed out that Section 55(4) would apply only with respect to appeals to the Deputy Commissioner(first appeals) and the same would not apply in the case of a second appeal before the Tribunal.

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We find that Section 55 provides appeal to the

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Deputy Commissioner(Appeals), whereas Section 60 is the provision enabling a second appeal to the appellate Tribunal.

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Conspicuously, an identical provision as that of the second

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W.A. No.2452/2019

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proviso to sub-section(4) of Section 55 is absent in Section 60. Therefore it cannot be contended that the Tribunal is not entitled to impose a condition for payment of more than 20%, while granting the stay.

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However, taking note of the quantum of amount in

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dispute, and also the principle enunciated with respect to the granting of stay by the first appellate authority, we are of the opinion that payment of 30% insisted upon would work out to hardships to the appellant. Hence, in exercise of equity, we are inclined to interfere to reduce the quantum of part payment insisted upon for granting the stay.

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Hence, the above appeal is hereby disposed of by

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modifying the judgment of the Single Judge and the impugned interim order passed by the Tribunal to the extent of granting interim stay against recovery of the disputed amounts until disposal of the appeal pending before the Tribunal, subject to a condition of the appellant depositing 20% of the total amount in

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dispute and on executing bond for the balance amount. For

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W.A. No.2452/2019

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compliance of the above conditions, a further period of two weeks time from today is granted.

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SD/- C.K. ABDUL REHIM, JUDGE .

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SD/- T.V. ANILKUMAR, JUDGE .

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ul/-

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// True copy //

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P.S. to Judge.

M/S Pathiyara Buildware, v. the Assistant Commissioner (Deputation)

Case brief

What is this about?

What did the court decide?

M/S Pathiyara Buildware, v. the Assistant Commissioner (Deputation)

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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