Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P.
MONDAY, THE 9TH DAY OF JANUARY 2023 / 19TH POUSHA, 1944 WP(C) NO. 125 OF 2023 PETITIONER:
M/S.CHELAKKARA GRANITES, KANNIMANAGALAM BUILDING, OORAMANA P.O., MUVATTUPUZHA, ERNAKULAM-686 663, REPRESENTED BY ITS MANAGING PARTNER, MR. K.R. VISHWANATHAN.
BY ADVS.
ANJU DAVIS K.
SANDEEP GOPALAKRISHNAN RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM – 695 001.
2 KERALA VALUE ADDED TAX APPELLATE TRIBUNAL, SGST COMPLEX, PERUMANOOR PO, ERNAKULAM, KERALA - 682015 REPRESENTED BY SECRETARY TO TRIBUNAL 3 THE DEPUTY COMMISSIONER (APPEALS) STATE GST DEPARTMENT, POOTHOLE, THRISSUR – 680 004.
4 THE DEPUTY COMMISSIONER (RECOVERY), STATE GOODS AND SERVICES TAX DEPT, MUVATTUPUZHA, KERALA – 686 669.
BY ADV. THUSHARA JAMES - SR. GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 125 OF 2023 2 JUDGMENT The petitioner has approached this Court being aggrieved by the fact that steps are being taken to recover an amount of penalty imposed on the petitioner through Ext.P2 order notwithstanding the fact that Ext.P2 order has been set aside by the 1st appellate authority through Ext.P3 order. It is the case of the petitioner that the State has filed a second appeal against Ext.P3 order and the petitioner has also filed a cross objection. It is submitted that the appeal filed by the State against Ext.P3 order as well as the cross objection filed by the petitioner are pending consideration before the Kerala Value Added Tax Appellate Tribunal (2nd respondent). It is submitted that steps are now been taken to recover the amounts due under Ext.P2 order imposing penalty. It is the case of the petitioner that Ext.P2 order no longer exists as the same has been set aside by the 1st appellate authority by Ext.P3 order.
2.
Heard the learned Senior Government Pleader also.
3.
Having heard the learned counsel for the petitioner and the learned Senior Government Pleader for the respondents, this writ petition will stand disposed of directing that any steps taken to recover amounts due under Ext.P2
WP(C) NO. 125 OF 2023 3 order imposing penalty shall be kept in abeyance as the said order has been set aside by the 1st appellate authority through Ext.P3 order. Any steps to recover amounts due under Ext.P2 can be sustained only if the Tribunal allows the appeal filed by the State against Ext.P3 order. Therefore, the proceedings now initiated to recover amounts due under Ext.P2 order imposing penalty are unsustainable in law. Therefore, the recovery proceedings initiated against the petitioner for recovery of amounts due under Ext.P2 order imposing penalty are quashed and it is directed that any steps for recovering amounts due under Ext.P2 shall be initiated only if the appeal filed by the State against Ext.P3 order is allowed by the Appellate Tribunal.
Post on 09.01.2023 as tobe spoken to.
Sd/- GOPINATH P.
JUDGE DK
WP(C) NO. 125 OF 2023 4 APPENDIX OF WP(C) 125/2023 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE CERTIFICATE ISSUED BY THE MANUFACTURER OF THE VSI MACHINE NAMELY, M/S. HAILSTONE INNOVATIONS PVT.
LTD.
Exhibit P2 TRUE COPY OF THE PENALTY ORDER NO.
ITC/IV/77/2015-16, DATED 29.12.2017.
Exhibit P3 TRUE COPY OF THE APPELLATE ORDER ISSUED BY THE 3RD RESPONDENT IN APPEAL NO.
1059/2017, DATED 29.01.2020 Exhibit P4 TRUE COPY OF DEPARTMENT APPEAL (WITHOUT ANNEXURES) NO. TA. NO. 85/2021 FILED BEFORE THE 2ND RESPONDENT.
Exhibit P5 TRUE COPY OF CROSS OBJECTION (WITHOUT ANNEXURES) FILED BY THE PETITIONER IN TA 85/2021 BEFORE THE 2ND RESPONDENT.
Exhibit P6 TRUE COPY OF THE DEMAND NOTICE DATED 20.12.2022 ISSUED BY THE 4TH RESPONDENT UNDER THE KERALA REVENUE RECOVERY ACT, PERTAINING TO EXT.P2 PENALTY ORDER.