Hotelshilpa Gardens vs. The Assistant Commissioner - Kerala High Court, 20 August 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI TUE AY, THE 20TH DAY OF AUGUST 2019 / 29TH SRAVANA, 1941 WP(C).No.22627 OF 2019(C) PETITIONER: M/S.HOTELSHILPA GARDENS KILIMANOOR, REPRESENTED BY MANAGING PARTNER SRI.K.P. KARTHIKEYAN. BY ADVS. SRI.ANIL D. NAIR SRI.R.SREEJITH SHRI.GOKULRAJ L. SMT. ARYA ANIL RESPONDENTS: 1 THE ASSISTANT COMMISSIONER SPL. CIRCLE, STATE GST DEPARTMENT, THIRUVANANTHAPURAM 695 002. 2 THE DEPUTY COMMISSIONER APPEALS, COMMERCIAL TAXES, THIRUVANANTHAPURAM 695 002. 3 THE ASSISTANT COMMISSIONER, STATE GST DEPARTMENT, THIRUVANANTHAPURAM 695 002. BY SMT. THUSHARA JAMES, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No.22627 OF 2019(C) 2 JUDGMENT The petitioner filed appeal in Ext.P2 aggrieved by the order of assessment in Ext.P1 made under Section 25(1) of the KVAT Act. The petitioner has filed the appeal with a delay condonation petition of 77 days in Ext.P3 and Ext.P4 stay petition. The petitioner prays for appropriate direction to the appellate authority to consider and dispose of Exts.P3 and P4 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 Exts.P3 and P4 results in the assessing officer taking steps for recovering the tax amount which is under challenge in Ext.P2. The assessing officer, if is successful in his effort the statutory appeal would become either academic or ineffective. It is further contended by the petitioner that in the manner the law provides for protecting the interest of appellant pending appeal, the orders on delay petition and stay petition are passed

WP(C).No.22627 OF 2019(C) 3 expeditiously. Hence the writ petition.

Perused Exts. P1, P2, P3 and P4. Prima facie I am satisfied that a case is made out for issuing necessary directions to second respondent to dispose of the delay condonation petition and stay petition in Exts.P3 and P4 respectively. 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/second respondent considers and disposes of Exts.P3 and P4 applications 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. S.V.BHATTI JUDGE DCS

WP(C).No.22627 OF 2019(C) 4 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1OF THE ASSESSMENT ORDER UNDER KVAT ACT DATED 6.3.2019 COMPLETED BY THE 1ST RESPONDENT FOR THE YEAR 2011-2012. EXHIBIT P2OF APPEAL DATED 1.8.2019 FILED BEFORE THE 2ND RESPONDENT FOR THE YEAR 2011- 2012 AGAINST THE P1 ORDER. EXHIBIT P3OF THE DELAY PETITION DATED 1.8.2019 FILED ALONG WITH P2 APPEAL BEFORE THE 2ND RESPONDENT. EXHIBIT P4OF THE STAY PETITION DATED 1.8.2019 FILED ALONG WITH P2 APPEAL BEFORE THE 2ND RESPONDENT. EXHIBIT P5OF THE RR NOTICE NO. RRC-NO 79/2019-2020 DATED 26.7.2019 ISSUED BY THE 3RD RESPONDENT.