Pact Machines PVT.LTD vs. The State Tax Officer
Original PDF →DATED 27.01.2020). DR.THUSHARA JAMES, GOVT.PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P(C) No.32199 of 2019 2 ALEXANDER THOMAS, J. =========================== W.P(C) No.32199 of 2019 =========================== Dated this the 27th day of January, 2020 JUDGMENT The case projected in this Writ Petition (Civil) is as follows: The petitioner is an authorised dealer of VOLVO equipments in Kerala. Original order of demand of tax and penalty namely Ext.P1 was quashed by this Court vide Ext.P2 judgment directing the 2nd respondent to pass fresh order after hearing the petitioner. In Ext.P2 judgment, it was made clear that if the petitioner seeks to get the goods released pending adjudication, the same may be done by furnishing a bank guarantee. The petitioner furnished Ext.P3 bank guarantee and got the goods released. The 1st respondent vide Ext.P4 order reimposed the tax and penalty. Ext.P-4 order was received on 25.11.2019. In Ext.P-4 order it is stated that Ext.P-3 bank guarantee is adjusted towards penalty and tax. If Ext.P3 bank guarantee is realized before an appeal is filed against Ext.P-4 and consequent disposal of the same, the petitioner will be put to irreparable loss and injury. Moreover, Sec.107 of the CGST Act permits the petitioner to make a pre-deposit of 10% and avail stay of demand till disposal of appeal. If
W.P(C) No.32199 of 2019 3 Ext.P-3 bank guarantee is realized before an appeal is filed, the very benefit granted to a person aggrieved under Sec.107(6)(b) and 107(7) of the Act will be defeated.
In the light of these averments and contentions, the petitioner has filed the instant Writ Petition with the following prayers: “i) Issue a writ of mandamus or appropriate writ or direction to the 1st, 2nd and 3rd respondent (sic) not to invoke/adjust Ext.P3 Bank Guarantee furnished by the petitioner and not to initiate any proceedings pursuant to forfeiture of simple bond till an appeal is filed against Ext.P4 order and consequent disposal of the same. ii) Direct the 4th and 5th respondent not to release Ext.P3 Bank Guarantee to the State Goods and Service Tax Department. iii) Permit the petitioner to file an appeal against Ext.P4 order by making the pre deposit of the diputed tax as described u/s 107 (6) (b) of the Act. iv) Issue any other writ or direction this Hon'ble court deems fit considering the facts and circumstances of the case.”
Heard Sri.Ramesh Cherian John, learned counsel appearing for the petitioner and Dr.Thushara James, learned Government Pleader appearing for respondents 1 to 3 & additional respondent No.
In the nature of the orders proposed to be passed in this Writ Petition, notice to contesting respondent Nos.4 and 5 (City Union Bank) will stand dispensed with.
W.P(C) No.32199 of 2019 4
Now it is pointed out to this Court’s attention that subsequent to the filing of this Writ Petition (Civil) on 27.11.2019, the petitioner thereafter has filed Ext.P-6 statutory appeal on 09.12.2019 before the 6th respondent-Deputy Commissioner (Appeals), State Goods and Service Tax (SGST) Department, to impugn Ext.P-4 order of demand and penalty imposed in this case and that the petitioner has also made requisite 10% pre-deposit in the said appeal, as can be seen from Ext.P-8 challan. That Ext.P-7 would show that the petitioner has filed Ext.P-6 appeal, along with Exts.P-8 challan remittance, etc. This Court has already passed an interim stay order on 27.11.2019 in this W.P(C), whereby the 1st, 2nd and 3rd respondents have been directed not to realise Ext.P-3 bank guarantee towards Ext.P-4 demand and not to take any coercive steps pursuant to the forfeiture of the simple bond during the pendency of this W.P(C), etc. The interim order has been extended by this Court.
Having regard to the nature of the controversy, the following directions and orders are passed in the interest of justice: (i) The 6th respondent-Appellate Authority (Deputy Commissioner (Appeals), State GST) shall consider Ext.P-6 appeal filed by the petitioner against Ext.P-4 order and after affording reasonable opportunity of being
W.P(C) No.32199 of 2019 5 heard to the petitioner, will ensure that final orders are passed for the disposal of Ext.P-6, without much delay, preferably within a period of 3 to 4 months or within any reasonable time limit that may be appropriately fixed by the said appellate authority in the manner he deems fit and proper and in the abovesaid process, the 6th respondent will ensure that all the contentions raised by the petitioner are duly adverted to and considered and final orders are passed disposing of Ext.P-6 appeal, as aforestated. (ii) It is seen from Ext.P-8 that the petitioner has indeed make pre-deposit amount of 10% of the input tax, along with Ext.P-6 appeal. In case, the petitioner has made such 10% pre-deposit, then the impugned Ext.P-4 order shall be kept in abeyance, until the final disposal of Ext.P-6 appeal. (iii) Further it is seen that the custody of the detained goods and vehicle has been returned to the petitioner after he had furnished bank guarantee. Therefore, now it is for the 1st respondent to ensure that the appellate proceedings pursuant to the detention order is duly finalised, in the
W.P(C) No.32199 of 2019 6 manner known to law after opportunity of being heard to the petitioner. (iv) Until orders are passed on the said appellate proceedings, both parties will ensure that the aforementioned bank guarantee offered by the petitioner is kept alive and renewed from time to time. In other words, the 1st respondent or none of the official respondents will take steps to pre-maturely appropriate and encash the said bank guarantee and forfeiture of the bond. The appellate proceedings may be finalised after the disposal of Ext.P-6 appeal against Ext.P-4 order. With these observations and directions, the above Writ Petition (Civil) stands finally disposed of. ALEXANDER THOMAS JUDGE vgd
W.P(C) No.32199 of 2019 7 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 AOF THE ORDER OF DEMAND OF TAX AND PENALTY INFORM GST MOV-09 DATED 25.10.2019. EXHIBIT P2 AOF THE JUDGMENT OF THIS HON'BLE COURT IN WPC.NO.29135 OF 2019 DATED 31.10.2019. EXHIBIT P3 AOF THE BANK GUARANTEE NO.0047119FB024355
DATED
2019 FURNISHED FOR PROVISIONAL RELEASE OF GOODS. EXHIBIT P4 AOF THE ORDER IN FORM NO.GST MOV-09 BEARING ORDER NO.OR.39/CGST/2019- 20 DATED 8.11.2019. EXHIBIT P5 AOF THE E-WAY BILL DATED 23.10.2019 WHICH WAS VALID UPTO 29.10.2019. EXHIBIT P6OF THE FORM OF APPEAL AND GROUNDS
OF APPEAL
FILED
ON 09.12.2019(WITHOUT ANNEXURES MENTIONED THEREIN) EXHIBIT P7OF THE RELEVANT PAGE OF THE LOCAL DELIVERY BOOK ACKNOLEDGING THE FILING OF THE APPEAL. EXHIBIT P8OF THE CHAL LAN SHOWING THE REMITTANCE OF 10 % OF DISPUTED TAX WHICH WAS FILE ALONG WITH EXT. P6 APPEAL
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.