M/S. Oceanus Dwellings PVT. LTD. 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 WEDNE AY, THE 29TH DAY OF JANUARY 2020 /9TH MAGHA, 1941 WA.No.102 OF 2020 AGAINST THE JUDGMENT IN WP(C) 33532/2019(N) OF HIGH COURT OF KERALA APPELLANT/APPELLANT: M/S. OCEANUS DWELLINGS PVT. LTD. RAMLEELA, PRIYADARSINI NAGAR, PUTHUR, PALAKKAD, REPRESENTED BY ITS REGIONAL MANAGER, K.A FRANCIS BY ADVS. SRI.HARISANKAR V. MENON SMT.MEERA V.MENON RESPONDENTS/RESPONDENTS: 1 THE STATE TAX OFFICER, DEPARTMENT OF SGST (KERALA) WORKS CONTRACT, PALAKKAD 678 001 2 THE DEPUTY COMMISSIONER (APPEALS) STATE GST DEPARTMENT, TAX TOWERS, PALAKKAD 678 001 OTHER PRESENT: SR.GP-SRI. MOHAMMED RAFIQ THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 29.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A. No.102/2020 -:2:- C.K. ABDUL REHIM & T.V. ANILKUMAR, JJ. ----------------------------------------------------- W.A. No. 102 OF 2020 ------------------------------------------------------- Dated this the 29th day of January, 2020 J U D G M E N T Abdul Rehim, J. The petitioner in W.P.(C) No.33532/2019 is in appeal against judgment of the Single Judge, dated 10th December, 2019. Respondents are the respondents in the writ petition.
Heard; counsel for the appellant and learned Government Pleader appearing for the respondents.
Sustainability of Ext.P5 interim order passed by the Deputy Commissioner(Appeals) in a stay petition filed along with a statutory appeal, filed against an order of assessment, is the subject matter agitated in the writ petition. The order is impugned on the basis that the appellate authority had insisted for payment of 20% of the disputed tax and for furnishing
W.A. No.102/2020 -:3:- security for the balance amount, without adverting to the prima facie merit in the appeal. It is also contended that the impugned order is a totally non speaking one, which lacks application of mind by the appellate authority.
In the writ petition, the appellant placed reliance on a decision of this court, reported in Archana Agencies v. Commercial Tax Officer[2014(2) KHC 360], pointing out that the impugned order is lacking any reasoning. But the learned Single Judge observed that, the authorised representative of the writ petitioner was absent when the stay petition was posted for hearing before the appellate authority. It was also observed that, had the stay petition been dismissed by the appellate authority then this court would not have been inclined to interfere with such dismissal order. But it is observed that, notwithstanding absence of the authorized representative, the appellate authority had only directed payment of 20% of the disputed demand as a condition for granting stay. Therefore the learned Single Judge observed that there exists no erroneous
W.A. No.102/2020 -:4:- exercise of the discretion by the appellate authority.
We are of the considered opinion that, since the appellate authority had not dismissed the interim stay application for default, the conditional stay order ought to have been passed on the basis of proper reasoning. The impugned order does not reflect any advertence to the grounds raised in the appeal or to its prima facie sustainability. Nor it contains any reasoning for insisting upon payment of 20% as a condition for granting stay, pending disposal of the appeal. The contention that the order is one which could be classified as a non speaking order, deserves consideration. Non-application of mind need to be inferred because the order is lacking any reasoning for such insistence made.
Under the above mentioned circumstances, we are of the view that the matter requires reconsideration at the hands of the appellate authority. Hence we allow the above writ appeal as well as the writ petition. Ext.P5 order passed by the Deputy Commissioner(Appeals), Palakkad in I.A. No.77 of 2019
W.A. No.102/2020 -:5:- in KVATA 101/2019 is hereby quashed. The appellate authority is directed to reconsider the interim application, after affording opportunity of hearing to both sides, and to pass fresh orders on the same. The needful in this regard shall be taken at the earliest possible, at any rate, within two weeks from the date of receipt of this judgment. For facilitating an early disposal of the interim application, the appellant shall appear before the Deputy Commissioner Appeals Palakkad on 06.02.2020. The authority shall hear the matter on the said date itself or to any other nearby date to which the matter is adjourned. C.K.ABDUL REHIM JUDGE T.V.ANILKUMAR JUDGE ul/-
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.