Auro Food PVT.LTD vs. The Asst.Commissioner Of State Tax - Kerala High Court, 19 November 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR TUE AY, THE 19TH DAY OF NOVEMBER 2019 / 28TH KARTHIKA, 1941 WP(C).No.31182 OF 2019(W) PETITIONER/S: AURO FOOD PVT.LTD C/O. GURUVAYURAPPAN AGENCIES, 1/800A, KIZHAKKANCHERRY KAVU, 5TH MILE, PALAKKAD, REPRESENTED BY ITS MANAGER, ACCOUNTS AND ADMIN. A, SELVAMANI. BY ADVS. SRI.HARISANKAR V. MENON SMT.MEERA V.MENON SMT.K.KRISHNA RESPONDENT/S: 1 THE ASST.COMMISSIONER OF STATE TAX STATE GST DEPARTMENT, SPECIAL CIRCLE, PALAKKAD-678 001 2 THE DEPUTY COMMISSIONER (APPEALS) SGST DEPARTMENT, PALAKKAD-678 001 GOVT.PLEADER SMT.THUSHARA JAMES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.P(C) No.31182/19 2 JUDGMENT The challenge in the writ petition is against Ext.P3 conditional order of stay passed by the first appellate authority, in a stay application filed along with an appeal against an order of assessment under the Kerala Value Added Tax Act, 2003. The learned counsel for the petitioner would submit that Ext.P3 is a conditional order which does not give any reason for the direction to pay 20% of the disputed amount pending disposal of the appeal. Reliance is placed on the decision of this Court in Archana Agencies v. Commercial Tax Officer [2014 (2) KHC 360].

I have heard the learned counsel for the petitioner and the learned Government Pleader for the respondents.

On a consideration of the facts and circumstances of the case and the submissions made across the Bar, although under normal circumstances this would be a case where, relying on the decision of Archana Agencies (supra), this Court would have quashed Ext.P3 order and remanded the matter back to the appellate authority for fresh consideration, I find that Ext.P3 order was passed after recording the fact that the authorised representative/appellant did not appear before the Deputy Commissioner (Appeals) when the stay petition was posted for hearing. If, under the said circumstance, the stay application had been dismissed by the appellate authority, then this Court would not have been inclined to interfere with such dismissal order, taking note of the absence of the petitioner at the time of hearing before the appellate authority. In the instant case, notwithstanding

W.P(C) No.31182/19 3 the absence of the authorised representative/appellant, the first appellate authority directed a payment of only 20% of the disputed demand as a condition for stay of recovery of the balance amount pending disposal of the appeal. Under the circumstances narrated above, I do not see this to be an erroneous exercise of discretion by the first appellate authority. The writ petition in its challenge against Ext.P3 order therefore fails and is accordingly dismissed. Taking note of the submission of the learned counsel for the petitioner that he would require some time to comply with the conditions in Ext.P3 order, I direct that if the petitioner complies with the conditions in Ext.P3 order within a month from the date of receipt of a copy of this judgment, then the said payment shall be treated as in compliance with Ext.P3 order of the first appellate authority. Save to this limited modification, the writ petition is dismissed. The petitioner shall produce a copy of the writ petition and a copy of this judgment before the respondent for further action. A.K.JAYASANKARAN NAMBIAR JUDGE

okb //// P.S. to Judge

W.P(C) No.31182/19 4 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF ASSESSMENT ORDER ISSUED BY THE RESPONDENT FOR THE YEAR 2011-12. EXHIBIT P2 COPY OF APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P3 COPY OF ORDER ISSUED BY THE 2ND RESPONDENT.