Allowed

Rajeev Gandhi House Construction Co-Operative Society Ltd. No.C. 1598 v. State of Kerala

Kerala HC18 Feb 2021RP/143/2021

Case brief

AI extract

What is this about?

High Court of Kerala allowed a review petition modifying the stay of recovery conditions in an original petition for tax. The Court extended the deadline for the first instalment from January to March 2021 and increased the number of instalments from five to ten due to the petitioner's financial crisis.

What did the court decide?

Review allowed; first instalment due date extended to 21.3.2021; number of instalments increased to ten.

Rajeev Gandhi House Construction Co-Operative Society… — Banking and Recovery | Kerala HC (2021)

¶1

R.P.No.143/2021 1

¶2

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶3

PRESENT

¶4

THE HONOURABLE MR.JUSTICE S.V.BHATTI

¶5

¶6

THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

¶7

THURSDAY, THE 18TH DAY OF FEBRUARY 2021 / 29TH MAGHA,1942

¶8

RP.No.143 OF 2021 IN OP (TAX). 5/2021

¶9

AGAINST THE ORDER/JUDGMENT IN OP (TAX) 5/2021 OF HIGH COURT OF KERALA

¶10

REVIEW PETITIONER/PETITIONER:

¶11

RAJEEV GANDHI HOUSE CONSTRUCTION CO-OPERATIVE SOCIETY LTD. NO.C. 1598 KOOTHUPARAMBA-670 643, REPRESENTED BY ITS SECRETARY CHITHRA P.P., AGED 47 YEARS, D/O.REGUNATHEN

¶12

BY ADVS. SRI.KALEESWARAM RAJ SRI.VARUN C.VIJAY KUM.A.ARUNA

¶13

RESPONDENTS/RESPONDENTS:

¶14

1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF TAX, SECRETARIAT, THIRUVANANTHAPURAM-695 001

¶15

2 KERAL VALUE ADDED TAZ/AGRICULTURAL INCOME TAX AND SALED TAX APPELLANT TRIBUNAL SALES TAX APPELLANT TRIBUNAL, REPRESENTED BY THE SECRETARY, ADDITIONAL BENCH, KOZHIKODE-673 001

¶16

3 DEPUTY COMMISSIONER OF STATE TAX, STATE GOODS AND SERVICE TAX DEPARTMENT, SPECIAL CIRCLE, KANNUR-673 001

¶17

4 JOINT COMMISSIONER (APPEALS) II, STATE GOODS AND SERVICE TAX DEPARTMENT, KOZHIKODE673 305

¶18

5 ASSISTANT COMMISSIONER OF STATE TAX, SPECIAL CIRCLE, STATE GOODS AND SERVICE TAX DEPARTMENT, KANNUR-670 002

¶19

R.P.No.143/2021 2

¶20

6 ASSISTANT DIRECTOR OF CO-OPERATIVE AUDIT, CO-OPERATIVE DEPARTMENT, KUTHUPARAMBA, KANNUR-670 643

¶21

OTHER PRESENT:

¶22

GP - SRI. RAFIQ

¶23

THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 18.02.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

¶24

R.P.No.143 of 2021 3

¶25

ORDER

¶26

Dated this the 18th day of February 2021

¶27

S.V.BHATTI, J.

¶28

The Review of order dated 12.1.2021, is at the instance of petitioner in O.P.(Tax) No.5 of 2021.

¶29

We have, while ordering continuation of stay of recovery pending appeal, granted five instalments to the petitioner to pay 30% of modified demand.

¶30

Adv.Aruna argues that this Court committed an error apparent by not referring to one of the prayers made in O.P. i.e. made to expeditiously consider and dispose of T.A.No.139 of 2020. The five equal instalments granted are impossible of performance and the default clause would certainly deny the protection of stay of recovery pending appeal to petitioner. The petitioner would suffer irreparable loss and injury if default clause operates. To convince the Court that the petitioner is passing through difficult phase of financial crisis, she invites our attention to Annexures-1 & 2 filed along with the Review

¶31

Petition. Firstly, she prays for granting unconditional stay and secondly, the Court considers directing Tribunal to dispose of T.A.No.139 of 2020 expeditiously.

¶32

R.P.No.143/2021 4

¶33

Learned Senior Government Pleader Mohammed Rafiq

¶34

objects to the grounds of review now put forward by the petitioner argues that the O.P. disposed of by granting the prayers to which the petitioner was eligible or entitled to in this behalf. These are discretionary matters and discretion has been exercised judiciously. The remedy of review petitioner against the order under review is misconceived. Further, the fact that while disposing of the case there is no reference to 2^nd prayer made in O.P. presupposes that the request has been declined by this Court. On the question of expeditious hearing of appeal, it is argued, these matters are exclusively in the discretion of the Court and the Court considers it strictly in accordance with law and material on record. No indulgence could be shown in the given circumstances, even if are valid.

¶35

We are aware of the scope of review and we do not propose to substantially substitute our order by accepting the grounds now canvassed by Adv.Aruna. To a very limited extent, we are convinced that the petitioner is passing through the phase of financial difficulties, the balance sheets filed before us evidences the present state of affairs. Hence under these circumstances we, as an exceptional case, are convinced to change the first instalment falling due on

¶36

R.P.No.143/2021 5

¶37

21.2.2021 and also five equal instalments granted by judgment dated

¶38

12.1.2021. Therefore these two conditions stand modified as first instalment is payable on or before 21.3.2021, in the place of five instalments ten equal instalments, are granted and liberty is granted to petitioner to move the Tribunal for expeditious disposal of Tax Appeal after complying with a few instalments now granted by this judgment. Hence the order dated 12.1.2021 reads as follows:

¶39

“The recovery proceedings are stayed till the disposal of the appeal subject to the condition the petitioner deposits 30% of the modified demand in ten equal instalments, the first instalment becoming due and payable on or before 21^st of March 2021. The petitioner furnishes simple bond for the balance amount on or before 21^st March 2021” The petitioner is given liberty to move the Tribunal for early disposal upon complying with a few instalments.

¶40

R.P. is allowed as indicated above.

¶41

Sd/- S.V.BHATTI

¶42

JUDGE

¶43

Sd/- BECHU KURIAN THOMAS

JUDGE

css/

R.P.No.143/2021 6

APPENDIX

PETITIONER'S EXHIBITS:

¶49

ANNEXURE P1

¶50

TRUE COPY OF THE BALANCE SHEET OF THE PETITIONER FOR THE YEAR 2019 WITH ENGLISH TRANSLATION

Rajeev Gandhi House Construction Co-Operative Society Ltd. No.C. 1598 v. State of Kerala

Case brief

What is this about?

What did the court decide?

Rajeev Gandhi House Construction Co-Operative Society Ltd. No.C. 1598 v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sri. Asharudheenmannan Kandy, Vs Assistant Director(Plaint Protection Officer)

R.Keerthana Vs State of Kerala

C.O.Johny Vs Commissioner of Income Tax

Kerala Communicators Cable Limited Vs the Assistant Commissioner of Income Tax CIRCLE-1(1)

M/S.Glass & Glazing Systems P.Ltd. Vs the Customs, Excise and Service Tax Appellate Tribunal

The President, Vs T.S.Abdul Rahiman @ Thangalkutty