Dismissed

K. v. Johny v State Tax Officer

Kerala HC1 Dec 2022OP (TAX)/35/2022

Case brief

AI extract

What is this about?

This Original Petition was filed to challenge the Tribunal's order staying the implementation of the first appellate order which had quashed a penalty. The High Court found the petition to be devoid of merits and dismissed it, holding that the delay in filing the stay petition did not render the Tribunal's order erroneous.

What did the court decide?

The Original Petition was dismissed as it was found to be devoid of merits.

K. v. Johny Vs State Tax Officer — Constitutional and Fundamental Rights | Kerala HC (2022)

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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 S.V.BHATTI

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THE HONOURABLE MR.JUSTICE BASANT BALAJI

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THURSDAY, THE 1^ST DAY OF DECEMBER 2022 / 10TH AGRAHAYANA,

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1944

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OP (TAX) NO. 35 OF 2022

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PETITIONER/S:

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K. V. JOHNY,AGED 60 YEARS PROPRIETOR, JWALA DIAMONDS, AMBADY LANE, VELIYANNUR, THRISSUR DISTRICT.PIN - 680021

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BY ADV TOMSON T.EMMANUEL

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RESPONDENT/S:

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1 STATE TAX OFFICER (FORMERLY INTELLIGENCE OFFICER), STATE GOODS AND SERVICES TAX DEPARTMENT, SQUAD NO.I, PUTHOLE, THRISSUR. PIN - 680004

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2 JOINT COMMISSIONER (INTELLIGENCE), STATE GOODS AND SERVICES TAX DEPARTMENT, EDAPPALLY, COCHIN.PIN - 682024

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3 DEPUTY COMMISSIONER (APPEALS) STATE GOODS AND SERVICES TAX DEPARTMENT, PUTHOLE, THRISSUR.PIN - 680004

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4 KERALA VALUE ADDED TAX APPELLATE TRIBUNAL STATE GOODS AND SERVICES TAX COMPLEX, PERUMANOOR, ERNAKULAM, KOCHI, REPRESENTED BY ITS SECRETARY. PIN - 682015

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5 COMMISSIONER OF STATE TAX STATE GOODS AND SERVICES TAX DEPARTMENT, TAX TOWER, KARAMANA P O; THIRUVANANTHAPURAM. PIN - 695022

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OP (TAX) NO. 35 OF 2022

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-2-

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6 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. PIN - 695033

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OTHER PRESENT:

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GP M.M. JASMIN

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THIS OP TAX HAVING COME UP FOR ADMISSION ON 01.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP (TAX) NO. 35 OF 2022

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-3-

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S.V.BHATTI

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& BASANT BALAJI, JJ.

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O.P.(Tax) No.35 of 2022

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JUDGMENT

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(Dated this the 1^st day of December 2022)

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Basant Balaji J.,

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The petitioner is engaged in manufacture and sale of gold studded diamond ornaments. While the petitioner was travelling in a public transport bus, he was checked by Kerala Excise and the Intelligence Inspector Squad No.VIII, Palakkad. The goods were seized and thereafter the squad issued notice under Section 47(2) of the Kerala Value Added Tax Act suspecting evasion of tax.

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The first respondent adjudicated the matter under section 47(2) of the KVAT Act and passed an order imposing penalty of Rs.18,10,870/- being double amount of

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OP (TAX) NO. 35 OF 2022

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-4-

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tax sought to be evaded. The petitioner filed statutory appeal before the third respondent which was numbered as KVAT Appeal No.120 of 2016. The First appellate authority allowed the appeal by order dated 20.12.2019, quashed the order imposing penalty and directed refund of the security deposited. The second respondent filed a second appeal before the 4^th respondent against the order of the first appellate authority dated 20.12.2019. A stay petition was also moved in the appeal filed against Ext.P3 as INTP No.262 of 2022. The fourth respondent/Tribunal posted the stay petition for hearing on 9.11.2022. The Tribunal, by Ext.P12 order dated 25.11.2022 allowed the stay petition and the operation of the first appellate order was stayed till the disposal of the appeal. Aggrieved by the order of the Tribunal, this Original Petition is filed.

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The first appellate authority passed Ext.P4order on 25.12.019 whereby the appeal was allowed and the penalty

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OP (TAX) NO. 35 OF 2022

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-5-

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order was quashed and security deposit collected from the appellant was directed to be refunded. Aggrieved by the order of the first appellate authority, the Revenue has filed TA(VAT) No.73 of 2020 within the prescribed time limit of filing the appeal. It is a fact that no stay petition was filed along with the appeal, but subsequently when the petitioner filed an application for implementation of the first appellate authority's order directing refund of the security deposit, a stay petition was moved along with a petition for early hearing. The Tribunal posted both the applications to 9.11.2022 and passed Ext.P12 order on 25.11.2022 staying the implementation of order of the first appellate authority.

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An appeal is a statutory right available to aggrieved party. Merely because a stay petition was not filed along with the appeal and it was moved subsequently and an order was passed by the Tribunal after a period of more

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OP (TAX) NO. 35 OF 2022

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-6-

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than two years of filing the appeal, cannot be made a ground to challenge the order passed by the Tribunal in the stay petition. It is worthwhile to note that the appeal was filed in time but the stay petition was moved subsequently. We do not find any jurisdictional error, illegality or impropriety in the order passed by the Tribunal in the stay petition.

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This OP (Tax) is devoid of merits and the same is, accordingly, dismissed.

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sd/ S.V.BHATTI, JUDGE

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sd/-BASANT BALAJI, JUDGE

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dl/

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OP (TAX) NO. 35 OF 2022

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-7-

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APPENDIX OF OP (TAX) 35/2022

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PETITIONER EXHIBITS

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Exhibit P1	TRUE COPY OF NOTICE NO.VC/VIII/85/16-17 DATED 04.06.2016 ISSUED BY INTELLIGENCE INSPECTOR, SQUAD NO.VIII, PALAKKAD U/S.47(2) OF THE KVAT ACT.
Exhibit P2	TRUE COPY OF BANK GUARANTEE NO.00460100000371 DATED 08.06.2016 ISSUED BY AXIS BANK SUBMITTED AS SECURITY DEPOSIT, AGAINST EXT-P1 NOTICE.
Exhibit P3	TRUE COPY OF ORDER DATED 04.03.2017 PASSED BY 1ST RESPONDENT, IMPOSING PENALTY, U/S.47(6) OF THE KVAT ACT.
Exhibit P4	TRUE COPY OF 1ST APPELLATE ORDER NO.KVATA 120/16 DATED 20.12.2019 PASSED BY 3RD RESPONDENT IN ALLOWING APPEAL FILED, AGAINST EXT-P3 ORDER IMPOSING PENALTY.
Exhibit P5	TRUE COPY OF 2ND APPEAL DATED 02.03.2020 FILED BY 2ND RESPONDENT BEFORE 4TH RESPONDENT, AGAINST EXT-P4 1ST APPELLATE ORDER.
Exhibit P6	TRUE COPY OF CIRCULAR NO.2/2020 DATED 04.04.2020 ISSUED BY 5TH RESPONDENT BASED ON FINANCE BILL 2020.
Exhibit P7	TRUE COPY OF SETTLEMENT OF ARREARS UNDER AMNESTY SCHEME 2020, APPROVED BY ASSESSING AUTHORITY ON 13.07.2020 AND PAYMENT MADE BY PETITIONER IN SETTLING ENTIRE ARREARS.

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OP (TAX) NO. 35 OF 2022

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Exhibit	P8	-8- TRUE COPY OF SPECIFIC REQUEST DATED 27.07.2022 SUBMITTED BY PETITIONER, BEFORE 1ST RESPONDENT FOR COMPLIANCE TO EXT-P4 1ST APPELLATE ORDER.
Exhibit	P9	TRUE COPY OF INTP. NO.262/22 DATED 16.08.2022 STAY PETITION SUBMITTED BEFORE 4TH RESPONDENT, BY 2ND RESPONDENT.
Exhibit	P10	TRUE COPY OF INTP. NO.264/22 DATED 24.08.2022 EARLY HEARING PETITION SUBMITTED BEFORE 4TH RESPONDENT, BY 2ND RESPONDENT.
Exhibit	P11	TRUE COPY OF LIST OF THE CASES POSTED FOR HEARING 09.11.2022 MADE BY 4TH RESPONDENT.
Exhibit	12	TRUE COPY OF ORDER DATED 25.11.2022 IN EXT-P9 STAY PETITION PASSED BY 4TH RESPONDENT, COMMUNICATED TO PETITIONER ON 26.11.2022 AND POSTING THE HEARING OF APPEAL TO 30.11.2022.

K. v. Johny v State Tax Officer

Case brief

What is this about?

What did the court decide?

K. v. Johny v State Tax Officer

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

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