Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH MONDAY, THE 25TH DAY OF MARCH 2024 / 5TH CHAITHRA, 1946 WP(C) NO. 12146 OF 2024 PETITIONER/S:
M/S MINAR GOLD PVT. LTD.
CITY DINE BUILDING, NORTH KOTTACHERY, KANHANAGAD, KASARAGOD , REPRESENTED BY ITS MANAGING DIRECTOR, JAMEESH MASAD A.K., AGED 38 YEARS, S/O ASSANKOYA C.P., MARINA HOUSE, CHERIYALINGALPARAMBA, M.M.ALI ROAD, KOZHIKODE., PIN - 671315
BY ADVS.K.SHAJ BEENA N.KARTHA C.IJLAL POORNIMA RAJAN ARUN CHAND BHARAT VIJAY P.
KEVIN JAMES MAJID MUHAMMED K.
MINU VITTORRIA PAULSON GOPIKA GOPAL ARCHANA P.P.
AKHILA HUSSAIN Z.
RESPONDENT/S:
1 THE STATE OF KERALA REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY (TAXES), TAXES DEPARTMENT, ABOVE OLD ASSEMBLY HALL, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM., PIN - 695001 2 THE COMMISSIONER OF COMMERCIAL TAXES (APPEALS) OFFICE OF THE COMMISSIONER OF COMMERCIAL TAXES (APPEALS), 9TH FLOOR, TAX TOWERS, KILLIPPALAM, KARAMANA P.O., THIRUVANANTHAPURAM., PIN - 695002
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3 THE JOINT COMMISSIONER TAXPAYER SERVICES, KASARAGOD, OFFICE OF THE JOINT COMMISSIONER, TAXPAYER SERVICES, STATE GOODS AND SERVICES TAX DEPARTMENT, 1ST FLOOR, B BLOCK, CIVIL STATION, VIDYANAGAR, KASARAGOD DISTRICT., PIN - 671123 4 THE COMMERCIAL TAX OFFICER OFFICE OF THE COMMERCIAL TAX OFFICER, DEPARTMENT OF COMMERCIAL TAXES, HOSDURG, KASARAGOD DISTRICT., PIN - 671312 5 THE ASSISTANT COMMISSIONER (ARREAR RECOVERY) TAXPAYER SERVICES, KASARAGOD, OFFICE OF THE ASSISTANT COMMISSIONER (ARREAR RECOVERY), TAXPAYER SERVICES, STATE GOODS AND SERVICES TAX DEPARTMENT, 1ST FLOOR, B BLOCK, CIVIL STATION, VIDYANAGAR, KASARAGOD DISTRICT., PIN - 671123 OTHER PRESENT:
SMT. RESHMITA RAMACHANDRAN-GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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J U D G M E N T
The present writ petition under Article 226 of the Constitution of India has been filed with the following prayers:
“I. To declare that the 3rd and 4th respondents treating assessee collected tax as illegal and warranting forfeiture of the same to the exchequer along with interest is illegal and unconstitutional;
II. To stay further proceedings pursuant to Exhibit P6 order during the pendency of the Exhibit P7 appeal and Exhibit P8 IA stay petition before the KVAT Appellate Tribunal is disposed of;
III. To stay further proceedings pursuant to Exhibit P5 recovery notice passed by the 5th respondent till Exhibit P7 appeal is disposed of;
IV. To direct the KVAT Appellate Tribunal to dispose of Exhibit P7 appeal expeditiously within a time frame; and V. to pass such other writ order or direction that this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.”
2.
The petitioner has filed Ext.P7 appeal along with a stay petition before the Kerala Value Added Tax Appellate
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Tribunal under the provisions of the Kerala Value Added Tax Rules made thereunder only on 12.03.2024.
3.
Learned Counsel for the petitioner submits that the modified demand under the KVAT Act is Rs.13,00,838/- as per Ext.P4. He further submits that the Tribunal has not considered the application for stay and the petitioner is facing recovery proceedings. Under the aforesaid circumstances, the petitioner has approached this Court. Learned Counsel for the petitioner also submits that this Court may direct the Tribunal to consider the stay petition expeditiously and until a decision on the stay petition is taken, no coercive measure be taken against the petitioner.
4.
I have considered the submission. The petitioner approached the Tribunal only on 12.03.2024 with an appeal along with the stay petition. In view thereof, the Appellate Tribunal, Kozhikode under the provision of the KVAT Act and Rules made thereunder, is directed to consider the stay
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petition filed by the petitioner in Ext.P8 expeditiously, preferably within a period of one month. Subject to the petitioner depositing 25% of the modified demand of Rs.13,00,838/-, there shall be an interim order against the recovery of the remaining amount from the petitioner.
The writ petition stands disposed of.
Sd/- DINESH KUMAR SINGH JUDGE
jjj
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APPENDIX OF WP(C) 12146/2024
PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE ASSESSMENT ORDER NO.
32130646931/2013-14 DATED 17/11/2016 FOR THE YEAR 2013-14.
Exhibit P2 THE TRUE COPY OF THE JUDGMENT DATED 08/08/2023 IN W.P.(C) NO. 41008/2016 PASSED BY THIS HON'BLE COURT.
Exhibit P3 THE TRUE COPY OF THE APPEAL DATED 31/05/2023 PETITIONER FILED BEFORE THE 3RD RESPONDENT JOINT COMMISSIONER (APPEALS), STATE GST DEPARTMENT KOZHIKODE.
Exhibit P4 THE TRUE COPY OF THE MODIFIED ORDER NO.
32130646931/2013-14 DATED 31/10/2023.
Exhibit P5 THE TRUE COPY OF RECOVERY NOTICE NO. F-7/2023 DATED 11/12/2023 ALONG WITH ITS ENGLISH TRANSLATION.
Exhibit P6 THE TRUE COPY OF THE ORDER DATED 25/01/2024 IN VATA NO. 91/2023 ISSUED BY THE 3RD RESPONDENT.
Exhibit P7 THE TRUE COPY OF THE APPEAL DATED 12/03/2024 FILED BEFORE THE KVAT APPELLATE TRIBUNAL.
Exhibit P8 THE TRUE COPY OF THE STAY PETITION DATED 12/03/2024.