Supply Point vs. The State Tax Officer - Kerala High Court, 22 August 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI THUR AY, THE 22ND DAY OF AUGUST 2019 / 31ST SRAVANA, 1941 WP(C).No.22964 OF 2019(U) PETITIONER: SUPPLY POINT KAYAMKULAM, REPRESENTED BY ITS PROPRITERESS SMT. JEEJA BAI. BY ADVS. SRI.AJI V.DEV SRI.H.ABDUL LATHIEF SRI.ALAN PRIYADARSHI DEV RESPONDENTS: 1 THE STATE TAX OFFICER SGST DEPARTMENT, KAYAMKULAM - 690 502. 2 THE ASSISTANT COMMISSIONER (APPEALS) SGST DEPARTMENT, FINANCIAL COMPLEX, PATHANAMTHITTA - 689 645. 3 THE KERALA VALUE ADDED TAX APELLATE TRIBUNAL ADDITIONAL BENCH, KOTTAYAM, REPRESENTED BY ITS SECRETARY - 686 001. 4 THE ASSISTANT COMMISSIONER S.G.S.T DEPARTMENT, CHENGANUR - 689 121, ALAPPUZHA DISTRICT. 5 THE BRANCH MANAGER, AXIS BANK, ASWATHI BUILIDING, OPPOSITE PUTHIYADOM TEMPLE, KAYAMKULAM - 690 502. SMT. M.M. JASMIN, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No.22964 OF 2019(U) 2 JUDGMENT The petitioner filed second appeal in Ext.P3 aggrieved by the order of assessment in Ext.P1 made under Section 25(1) of the KVAT Act and Ext.P2 first appellate order. The petitioner has filed the second appeal along with Ext.P3(a) stay petition. The petitioner prays for appropriate direction to the appellate authority to consider and dispose of Ext.P3(a) expeditiously.

The case of petitioner is that either the mere filing of appeal or mere pendency of appeal does not amount to granting stay by the appellate authority. The delay in considering and disposing of Ext.P3(a) results in the assessing officer taking steps for recovering the tax amount which is under challenge in Ext.P3. The assessing officer, if is successful in his effort the statutory appeal would become either academic or ineffective. It is further contended by the

WP(C).No.22964 OF 2019(U) 3 petitioner that in the manner the law provides for protecting the interest of appellant pending appeal, the order on stay petition is passed expeditiously. Hence the writ petition.

Perused Ext. P1, P2, P3 and P3(a). Prima facie I am satisfied that a case is made out for issuing necessary directions to third respondent to dispose of the stay petition in Ext.P3(a). Having regard to the limited prayer and the grounds referred to above, this Court is satisfied that the writ petition can be disposed of by this order: (a) The appellate authority/third respondent considers and disposes of Ext.P3(a) stay petition as early as possible, preferably within two months from the date of receipt of copy of this judgment. (b) The respondents are directed not to take coercive steps or recover the amounts determined in the orders under appeal for ten weeks from today. (c) Stay of recovery including the attachment effected through letter B2/280/15-16 issued by Asst. Commissioner, GST Department,

WP(C).No.22964 OF 2019(U) 4 Chengannur is granted for ten weeks from today. S.V.BHATTI JUDGE DCS

WP(C).No.22964 OF 2019(U) 5 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 AOF THE ASSESSMENT ORDER PASSED FOR THE YEAR DATED 21.12.2015. EXHIBIT P2 AOF THE APPELLATE ORDER PASSED FOR THE YEAR 2013-13 DATED 20.12.2018. EXHIBIT P3 AOF THE SECOND APPEAL FILED FOR THE YEAR 2013-13 DATED 21.08.2019. EXHIBIT P3 A AOF THE STAY PETITION FILED ALONG WITH EXT.P3 APPEAL DATED 21.08.2019. EXHIBIT P4 AOF THE RECOVERY NOTICE ISSUED BY THE 4TH RESPONDENT FOR 2012-13 DATED 03.08.2019 ALONG WITH ENGLISH TRANSLATION. EXHIBIT P5 AOF THE LETTER ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER DATED 20.08.2019.