Noorjehans Hot Pan Restaurant vs. The State Tax Officer
Original PDF →IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR TUE AY, THE 03RD DAY OF MARCH 2020 / 13TH PHALGUNA, 1941 WA.No.221 OF 2020 AGAINST THE JUDGMENT DTD 22.10.2019 IN WP(C) 27878/2019(H) OF HIGH COURT OF KERALA APPELLANT/PETITIONER: M/S.NOORJEHANS HOT PAN RESTAURANT EMARALD RESIDENCY, NEAR KSRTC JUNCTION, THRISSUR, REPRESENTED BY ITS MANAGING PARTNER, MR.ABDUL RAWOOF.T.K., AGED 44 YEARS, S/O.P.C.HAMSA. BY ADVS. SRI.K.M.ANEESH SRI.ADARSH KUMAR SRI.K.SANTHOSH KUMAR (KALIYANAM) SRI.DILEEP CHANDRAN SRI.SHASHANK DEVAN RESPONDENTS/RESPONDENTS: 1 THE STATE TAX OFFICER STATE GST DEPARTMENT, THRISSUR-680001 2 THE INTELLIGENCE OFFICER, SQUAD NO.II, DEPARTMENT OF COMMERCIAL TAXES, THRISSUR-680001 3 THE KERALA VALUE ADDED TAX APPELLATE TRIBUNAL SALES TAX COMPLEX, THEVARA, ERNAKULAM, KOCHI-682015, REPRESENTED BY ITS SECRETARY
W.A.No.221 of 2020 :-2-: OTHER PRESENT: SR.GP-SRI.MOHAMMED RAFIQ THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.No.221 of 2020 :-3-: C.K.ABDUL REHIM & T.V.ANILKUMAR, JJ. ------------------------------------------------ W.A.No.221 of 2020 ----------------------------------------- Dated this the 3rd day of March, 2020 J U D G M E N T C.K.ABDUL REHIM, J. An interim order of conditional stay granted by the Kerala Value Added Tax Appellate Tribunal, Ernakulam, under Ext.P6, was challenged in the writ petition. The Tribunal granted the interim stay against collection and recovery of the disputed amount of penalty, pending disposal of the second appeal, subject to condition of the writ petitioner remitting 30% of the disputed amount. It was challenged mainly contending that the Tribunal ought to have granted unconditional stay and that it had failed to consider merits in the appeal. Learned Single Judge observed that, Ext.P6 does not suffer from any legal infirmity so as to warrant an interference in a proceedings
W.A.No.221 of 2020 :-4-: initiated under Article 226 of the Constitution of India. It was observed that, the Tribunal had considered the merits of the contentions raised and found in its discretion that it is necessary to direct the appellant to deposit 30% of the demand, as a condition for granting stay, pending disposal of the appeal. However, the learned Single Judge had shown indulgence in permitting the writ petitioner to comply with the condition stipulated in Ext.P6 order, within a period of one month from the date of the judgment. It is aggrieved by the said judgment that the above writ appeal is filed.
On a perusal of the interim order passed by the Tribunal (Ext.P6), it is evident that, prima facie merit of the second appeal was adverted to and considered by the Tribunal. The order cannot be classified as one passed without application of mind or lacking reasons. The extent of the condition imposed by the Tribunal, is the matter coming within the absolute discretionary power of the
W.A.No.221 of 2020 :-5-: Tribunal. Therefore we are of the opinion that the learned Single Judge was right in declining the relief. Therefore,
the appeal deserves no merit.
Learned counsel appearing for the appellant made an appeal to this Court to show indulgence in reducing the quantum of the condition imposed, based on the submissions made about the acute financial stringency experienced by the appellant. Eventhough we are not inclined to interfere on merits, as an equitable relief we are persuaded to reduce the condition to 20%, instead of 30% insisted on by the Tribunal.
Hence, while declining interference with the impugned judgment on merits, we modify the condition insisted upon in Ext.P6, to the extent of permitting the appellant to deposit 20% of the disputed amount, instead of the 30%. The deposit shall be made within a period of one month from today. The Tribunal shall also take earnest endeavour to dispose of the appeal at the earliest.
W.A.No.221 of 2020 :-6-: Needless to observe that, amount if any already paid out of the disputed amount of penalty, shall be given credit while computing the 20%. C.K.ABDUL REHIM JUDGE T.V.ANILKUMAR JUDGE ami/
Reproduced from the public record of the Kerala High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.