Disposed

Jose Sebastian v. Commercial Tax Officer

Kerala HC8 Jan 2020WP(C)/368/2020

Case brief

AI extract

What is this about?

The High Court directed the Commercial Tax Officer to accept bonds executed by the petitioner despite submission beyond the stay order deadline, citing lack of communication, while levying costs of Rs. 5,000. The writ petition was finally disposed of.

What did the court decide?

Directed first respondent to accept bonds; stayed coercive steps contingent on payment of Rs. 5,000 costs within two weeks.

Jose Sebastian Vs Commercial Tax Officer — Writ and Judicial Review | Kerala HC (2020)

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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 ALEXANDER THOMAS

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WEDNESDAY, THE 08TH DAY OF JANUARY 2020 / 18TH POUSHA, 1941 WP(C).No.368 OF 2020(U)

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PETITIONER/S:

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JOSE SEBASTIAN, AGED 40 YEARS PROPRIETOR, M/S MERRY FRUIT PRODUCTS, KAVANA, VAZHAKULAM P.O., MUVATTUPUZHA.

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BY ADVS. SRI.P.S.SOMAN SMT.T.RADHAMANY

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RESPONDENT/S:

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1 COMMERCIAL TAX OFFICER, COMMERCIAL TAXES DEPARTMENT, MUVATTUPUZHA AT MINI CIVIL STATION, MUVATTUPUZHA- 686669.

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2 THE KERALA VALUE ADDED TAX APPELLATE TRIBUNAL, COMMERCIAL TAX COMPLEX, THEVARA, ERNAKULAM- 15.

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3 INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAXES DEPARTMENT, MUVATTUPUZHA AT MINI CIVIL STATION, MUVATTUPUZHA- 686669.

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4 THE BRANCH MANAGER, STATE BANK OF INDIA, VAZHAKULAM BRANCH, MUVATTUPUZHA- 686670.

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OTHER PRESENT:

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SMT.THUSHARA JAMES, GOVT.PLEADER, SRI.A.KUMAR, SC FOR R4

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ALEXANDER THOMAS, J.

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

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W.P.(C).No. 368 of 2020

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

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Dated this the 8^th day of January, 2020

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J U D G M E N T

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The complaint voiced by the petitioner in this Writ Petition is that though the appellate Tribunal had granted interim stay in favour of the petitioner as per Ext.P-4 common stay order dated 9.5.2018 and Ext.P-4 (a) dated 1.8.2018 in the appeals concerned, the counsel concerned, who appeared for the petitioner in the said stay applications before the Tribunal had not communicated copies of the said stay order with the result that the petitioner was not in a position to fulfill the condition in the said stay order for execution of the simple bond for the balance amount concerned. That the petitioner came to know about the stay orders as per Ext.P-4 and Ext.P-4(a) as well as the condition therein for execution of the simple bond only when revenue recovery steps were initiated and that thereupon the petitioner had approached the 1^st respondent and had submitted five separate bonds executed as per Ext.P-5 to Ext.P-5(e), but the same was not acted upon by the 1^st respondent on the ground that the time limit stipulated for execution of the bond as per Ext.P-4 series has already expired. It it in the light of these facts and circumstances that the petitioner has filed the instant Writ Petition (Civil) with the

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W.P.(C).368/20 - : 3 :-

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following prayers:

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“(i) Issue a writ in the nature of mandamus or any other appropriate writ or order directing the 1^st Respondent to accept Exhibits P-5 to P-5 (e) bonds and stop all further recovery proceedings including the freezing of the bank account in the 4^th Respondent's bank.

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(ii) Issue a writ in the nature of mandamus or any other appropriate writ or order directing the 2^nd Respondent to pass orders in Exhibits P-7 to P-7 (e) petitions for enlargement of time expeditiously within a time limit fixed by this Hon'ble Court.

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(iii) Issue a writ in the nature of mandamus or any other appropriate writ or order directing the 2^nd Respondent to pass orders in Exhibits P-2 to P-2 (e) appeal petitions expeditiously within a time limit fixed by this Hon'ble Court.

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And

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(iv) Issue such other reliefs.”

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Heard Sri.P.S.Soman Pulladan, learned counsel appearing for the petitioner, Smt.Thushara James, learned Government Pleader appearing for respondents 1 to 3 State authorities and Sri.A.Kumar, learned Standing Counsel appearing for R-4 (State Bank of India).

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It is urged by the learned counsel for the petitioner that the petitioner could not fulfill the insistence of Ext.P-4 series of stay orders for execution of the simple bond within the time limit mainly for the reason that the counsel concerned had not informed the petitioner about the said stay orders and that no prejudice will be caused to the respondents, if this Court issues necessary directions to ensure acceptance of the simple bonds now executed and submitted by the petitioner in compliance with the requirements in Ext.P-4 and

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W.P.(C).368/20 - : 4 :-

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Ext.P-4(a) interim stay orders. Further it is pointed out that Ext.P-4 series of stay orders are still current and in force and have not been altered or varied in the manner known to law and that the procedural aspect for execution of the simple bond within the stipulated time limit may not stand in the way of taking away the substantive right already accrued to the petitioner on the basis of the stay orders granted in Ext.P-4 and Ext.P-4(a) series.

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The said submission made by the learned counsel for the petitioner merits acceptance. It is an indisputable aspect of the matter that Ext.P-4 and Ext.P-4(a) series of stay orders are still current and in force and have not been varied or altered in the manner to law. Having regard to the submission of the petitioner that he had not been duly communicated about the stay orders as well as the condition therein, need not be disbelieved by this Court. Having regard to these aspects it is ordered that it is for the petitioner to immediately re-submit the bonds executed as per Ext.P-5 series, upon which the 1^st respondent will accept and act upon the same, if it is otherwise in order. In other words, the said Ext.P-5 series of bonds shall not be rejected mainly on the ground that the same has not been furnished beyond the time limit insisted in Ext.P-4 and Ext.P-4(a)

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W.P.(C).368/20 - : 5 :-

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stay orders. However, it is subject to the condition that the petitioner should pay cost of Rs. 1,000/- (rupees one thousand only) each in five stay applications concerned and the said amount may be remitted by way of challan to the account of the 1^st respondent or the competent authority concerned as may be intimated by the 1^st respondent. The petitioner may ensure that the said cost amount totalling to Rs. 5,000/- (Rs. 1,000 x 5 = Rs.50000) shall be paid without much delay, preferably within a period of two weeks from the date of production of a certified copy of this judgment. Needless to say, further coercive steps for enforcement of the order impugned in the abovesaid appeals shall be kept in abeyance. However, in case the petitioner does not pay the abovesaid cost amount of Rs. 5,000/within the said time limit of two weeks, then the said direction will stand automatically vacated without any further orders from this Court.

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With these observations and directions, the Writ Petition (Civil) stands finally disposed of.

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Sd/- ALEXANDER THOMAS, JUDGE

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sdk+

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W.P.(C).368/20 - : 6 :-

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF 2008-09 DATED RESPONDENT.	THE ASSESSMENT ORDER FOR THE YEAR 13.07.2015 ISSUED BY THE 1ST
EXHIBIT P1A	TRUE COPY OF 2010-11 DATED RESPONDENT.	THE ASSESSMENT ORDER FOR THE YEAR 13.07.2015 ISSUED BY THE 1ST
EXHIBIT P1A	TRUE COPY OF 2010-11 DATED RESPONDENT.	THE ASSESSMENT ORDER FOR THE YEAR 13.07.2015 ISSUED BY THE 1ST
EXHIBIT P1B	TRUE COPY OF 2011-12 DATED RESPONDENT.	THE ASSESSMENT ORDER FOR THE YEAR 13.07.2015 ISSUED BY THE 1ST
EXHIBIT P1C	TRUE COPY OF 2012-13 DATED RESPONDENT.	THE ASSESSMENT ORDER FOR THE YEAR 31.10.2015 ISSUED BY THE 1ST
EXHIBIT P1D	TRUE COPY OF 2013-14 DATED RESPONDENT.	THE ASSESSMENT ORDER FOR THE YEAR 30.01.2016 ISSUED BY THE 1ST
EXHIBIT P1E	TRUE COPY OF 2014-15 DATED RESPONDENT.	THE ASSESSMENT ORDER FOR THE YEAR 31.08.2016 ISSUED BY THE 1ST
EXHIBIT P2	TRUE COPY OF PETITIONER BEF 2008=09 DATED	THE 2ND APPEAL FILED BY THE ORE THE 2ND RESPONDENT FOR THE YEAR 26.12.2017.
EXHIBIT P2(A)	TRUE COPY OF PETITIONER BEF 2010-11 DATED	THE 2ND APPEAL FILED BY THE ORE THE 2ND RESPONDENT FOR THE YEAR 26.12.2017.
EXHIBIT P2(B)	TRUE COPY OF	THE 2ND APPEAL FILED BY THE
	PETITIONER BEF 2011-12 DATED	ORE THE 2ND RESPONDENT FOR THE YEAR 26.12.2017.

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W.P.(C).368/20 - : 7 :-

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EXHIBIT	P2(C) TRUE PETIT 2012-	COPY OF THE 2ND APPEAL FILED BY THE IONER BEFORE THE 2ND RESPONDENT FOR THE YEAR 13 DATED 26.12.2017.
EXHIBIT	P2(D) TRUE PETIT 2013-	COPY OF THE 2ND APPEAL FILED BY THE IONER BEFORE THE 2ND RESPONDENT FOR THE YEAR 14 DATED 26.12.2017.
EXHIBIT	P2(E) TRUE PETIT 2014-	COPY OF THE 2ND APPEAL FILED BY THE IONER BEFORE THE 2ND RESPONDENT FOR THE YEAR 15 DATED 14.02.2018.
EXHIBIT	P3(D) TRUE COLLE RESPO YEAR	COPY OF THE APPLICATION FOR STAY OF CTION OF DISPUTED TAX FILED BEFORE THE 2ND NDENT AGAINST THE ASSESSMENT ORDER FOR THE 2013-14 DATED 26.12.2017.
EXHIBIT	P3(E) TRUE COLLE RESPO YEAR	COPY OF THE APPLICATION FOR STAY OF CTION OF DISPUTED TAX FILED BEFORE THE 2ND NDENT AGAINST THE ASSESSMENT ORDER FOR THE 2014-15 DATED 14.02.2018.
EXHIBIT	P3 TRUE COLLE RESPO YEAR	COPY OF THE APPLICATION FOR STAY OF CTION OF DISPUTED TAX FILED BEFORE THE 2ND NDENT AGAINST THE ASSESSMENT ORDER FOR THE 2008-09 DATED 26.12.2017.
EXHIBIT	P3(A) TRUE COLLE RESPO YEAR	COPY OF THE APPLICATION FOR STAY OF CTION OF DISPUTED TAX FILED BEFORE THE 2ND NDENT AGAINST THE ASSESSMENT ORDER FOR THE 2010-11 DATED 26.12.2017.
EXHIBIT	P3(B) TRUE COLLE RESPO YEAR	COPY OF THE APPLICATION FOR STAY OF CTION OF DISPUTED TAX FILED BEFORE THE 2ND NDENT AGAINST THE ASSESSMENT ORDER FOR THE 2011-12 DATED 26.12.2017.
EXHIBIT	P3(C) TRUE COLLE RESPO YEAR	COPY OF THE APPLICATION FOR STAY OF CTION OF DISPUTED TAX FILED BEFORE THE 2ND NDENT AGAINST THE ASSESSMENT ORDER FOR THE 2012-13 DATED 26.12.2017.
EXHIBIT	P3(D) TRUE	COPY OF THE APPLICATION FOR STAY OF
	COLLE RESPO YEAR	CTION OF DISPUTED TAX FILED BEFORE THE 2ND NDENT AGAINST THE ASSESSMENT ORDER FOR THE 2013-14 DATED 26.12.2017.

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W.P.(C).368/20 - : 8 :-

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EXHIBIT	P3(E) TRUE COPY OF COLLECTION OF RESPONDENT AGA YEAR 2014-15 D	TH DISP INST ATED	E APPLICATION FOR STAY OF UTED TAX FILED BEFORE THE 2ND THE ASSESSMENT ORDER FOR THE 14.02.2018.
EXHIBIT	P4 TRUE COPY OF T 2ND RESPONDENT TO 2013-14.	HE C FOR	OMMON STAY ORDER PASSED BY THE THE YEARS 2008-09 AND 2010-11
EXHIBIT	P4(A) TRUE COPY OF RESPONDENT FOR	THE THE	STAY ORDER PASSED BY THE 2ND YEAR 2014-15.
EXHIBIT	P5 TRUE COPY OF BEFORE THE 1ST	THE RESP	BOND PREPARED AND SUBMITTED ONDENT FOR THE YEAR 2008-2009.
EXHIBIT	P5(A) TRUE COPY OF BEFORE THE 1ST	THE RESP	BOND PREPARED AND SUBMITTED ONDENT FOR THE YEAR 2010-11.
EXHIBIT	P5(B) TRUE COPY OF BEFORE THE 1ST	THE RESP	BOND PREPARED AND SUBMITTED ONDENT FOR THE YEAR 2011-12.
EXHIBIT	P5(C) TRUE COPY OF BEFORE THE 1ST	THE RESP	BOND PREPARED AND SUBMITTED ONDENT FOR THE YEAR 2012-13.
EXHIBIT	P5(D) TRUE COPY OF BEFORE THE 1ST	THE RESP	BOND PREPARED AND SUBMITTED ONDENT FOR THE YEAR 2013-14.
EXHIBIT	P5(E) TRUE COPY OF BEFORE THE 1ST	THE RESP	BOND PREPARED AND SUBMITTED ONDENT FOR THE YEAR 2014-15.
EXHIBIT	P6 TRUE COPY OF RESPONDENT REJ	TH ECTIN	E LETTER ISSUED BY THE 1ST G EXHIBITS-P5 TO P5(E) BONDS.
EXHIBIT	P7 TRUE COPY OF 28.11.2019 FIL ENLARGEMENT OF THE DEMAND IN	THE ED TIME EXHIB	PETITIONER AND AFFIDAVIT DATED BEFORE THE 2ND RESPONDENT FOR FOR FILING BOND IN RESPECT OF IT P1 ORDER.

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EXHIBIT P7(A) TRUE COPY OF THE	PETITI	ONER AND AFFIDAVIT DATED
28.11.2019 FILED	BEFORE	THE 2ND RESPONDENT FOR
ENLARGEMENT OF TIM	E FOR	FILING BOND IN RESPECT OF
THE DEMAND IN EXHI	BIT P1	(A) ORDER.

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W.P.(C).368/20 - : 9 :-

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EXHIBIT P7(B) TRUE COPY OF THE PETITIONER AND AFFIDAVIT DATED 28.11.2019 FILED BEFORE THE 2ND RESPONDENT FOR ENLARGEMENT OF TIME FOR FILING BOND IN RESPECT OF THE DEMAND IN EXHIBIT P1(B) ORDER.

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EXHIBIT P7(C) TRUE COPY OF THE PETITIONER AND AFFIDAVIT DATED 28.11.2019 FILED BEFORE THE 2ND RESPONDENT FOR ENLARGEMENT OF TIME FOR FILING BOND IN RESPECT OF THE DEMAND IN EXHIBIT P1(C) ORDER.

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EXHIBIT P7(D) TRUE COPY OF THE PETITIONER AND AFFIDAVIT DATED 28.11.2019 FILED BEFORE THE 2ND RESPONDENT FOR ENLARGEMENT OF TIME FOR FILING BOND IN RESPECT OF THE DEMAND IN EXHIBIT P1(D) ORDER.

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EXHIBIT P7(E) TRUE COPY OF THE PETITIONER AND AFFIDAVIT DATED 28.11.2019 FILED BEFORE THE 2ND RESPONDENT FOR ENLARGEMENT OF TIME FOR FILING BOND IN RESPECT OF THE DEMAND IN EXHIBIT P1(E) ORDER.

Jose Sebastian v. Commercial Tax Officer

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Jose Sebastian v. Commercial Tax Officer

Case brief

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