C. Arshad vs. State GST Officer - Kerala High Court, 27 November 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR WEDNE AY, THE 27TH DAY OF NOVEMBER 2019 / 6TH AGRAHAYANA, 1941 WP(C).No.32066 OF 2019(G) PETITIONER: C. ARSHAD, AGED 34 YEARS CEOS TRADING CO. CHERUKULAMBA,WEST PAZHAMALLUR, CHATTIPARAMBA VATTALLOOR, MALAPPURAM 676 507 BY ADVS. SRI.P.RAGHUNATH SRI.PREMJIT NAGENDRAN RESPONDENTS: 1 STATE GST OFFICER SGST DEPT. PERINTHALMANNA 676 322 2 ASST. COMMISSIONER (APPEALS) MANJERI 676 121 DEPARTMENT OF COMMERCIAL TAXES. 3 DEPUTY TAHSILDAR PERINTHALMANNA 676 322 SMT. THUSHARA JAMES; GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No.32066 OF 2019 2 JUDGMENT The petitioner who is a dealer under the Kerala Value Added Tax Act( 'the Act' for short), has approached this court aggrieved by the refusal on the part of the 1st respondent Assessing Authority, to accept and act upon a demand draft for Rs. 1,28,800/-, being 20% of the tax due as per the assessment order for the assessment year 2016-2017, that was presented to support an appeal preferred against the said assessment order before the Appellate Authority. It is pointed out that, on payment of 20% of the disputed tax, there is an automatic stay in favour of the petitioner, by virtue of the second proviso under Section 55(4) of the Act, which would insulate the petitioner from recovery proceedings for recovery of the balance tax found payable as per the assessment order. Notwithstanding, the said payment attempted by the petitioner, the 1st respondent refused to accept the payment on the ground that he had already caused revenue recovery proceedings to be initiated against the petitioner for the recovery of the amount confirmed against the petitioner by the assessing authority.

I have heard the learned counsel appearing for the petitioner and also the learned Government Pleader appearing for the respondents. On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, I find that the objection raised by the

WP(C).No.32066 OF 2019 3 1st respondent, to receive 20% of the tax amount offered by the petitioner, is a technical one based on the internal circulars issued by the Revenue Department which are binding on the 1st respondent. In as much as the petitioner relies on a statutory provision - Section 55(4) - that enables him to claim the benefit of stay of recovery of balance demands on payment of 20% of the disputed tax, I am of the view that the payment offered by the petitioner should be accepted by the 1st respondent and the petitioner is entitled to the benefit of the stay, pending disposal of the appeal by the First Appellate Authority. Accordingly, I dispose the writ petition with a direction to the 1st respondent to accept the payment offered by the petitioner forthwith, and making it clear that as a consequence thereof, recovery proceedings against the petitioner for the amounts confirmed against him by the assessment order shall not be pursued, pending disposal of the appeal by the 2nd respondent Appellate Authority. The petitioner shall produce a copy of the writ petition together with a copy of this judgment, before the 1st respondent, for further action. A.K.JAYASANKARAN NAMBIAR JUDGE SJ

WP(C).No.32066 OF 2019 4 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 PHOTOCOPY OF ASST. ORDER FOR 2016-17 DT 23- 07-2019 EXHIBIT P2 PHOTOCOPY OF APPEAL FILED AGAINST EXT. P-1 BEFORE SECOND RESPONDENT EXHIBIT P3 PHOTOCOPY OF APPLICATION FOR CONDONATION OF DELAY FILED ALONG WITH EXT.P-2 EXHIBIT P4 PHOTOCOPY OF DEMAND DRAFT NO. 500209 DT. 13-11-2019 EXHIBIT P5 PHOTOCOPY OF RR NOTICE IN FORM 1 EXHIBIT P6 PHOTOCOPY OF RR NOTICE IN FORM 10 EXHIBIT P7 PHTOOCOPY OF LETTER DATE 15-11-2019 RETURNING EXT. P-4 DEMAND DRAFT.