Magnet Hotels vs. Assistant Commissioner - Kerala High Court, 26 July 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI FRIDAY, THE 26TH DAY OF JULY 2019 / 4TH SRAVANA, 1941 WP(C).No.19960 of 2019 PETITIONER: MAGNET HOTELS NEAR KSRTC BUS STATION, ALAPPUZHA - 688011. REPRESENTED BY MANAGING PARTNER TOMY THOMAS. BY ADV. SRI.V.V.GEORGEKUTTY RESPONDENTS: 1 ASSISTANT COMMISSIONER STATE GOODS AND SERVICE TAX DEPARTMENT, SPECIAL CIRCLE, ALAPPUZHA - 688001. 2 THE DEPUTY COMMISSIONER (APPEALS) COMMERCIAL TAXES, KOLLAM - 691002 3 THE ASSISTANT COMMISSIONER STATE GST DEPARTMENT, ALAPPUZHA - 688001. BY DR. THUSHARA JAMES, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No.19960 of 2019 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 along with Ext.P3 stay petition. The petitioner prays for appropriate direction to the appellate authority to consider and dispose of Ext.P3 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 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 order on stay

WP(C).No.19960 of 2019 3 petition is passed expeditiously. Hence the writ petition.

Perused Ext. P1, P2 and P3. Prima facie I am satisfied that a case is made out for issuing necessary directions to second respondent to dispose of the stay petition in Ext.P3 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 Ext.P3 application 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.19960 of 2019 4 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1OF THE ASSESSMENT ORDER AND DEMAND NOTICE FOR 2014-15 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P2OF THE APPEAL MEMORANDUM FOR 2014-15 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P3OF THE STAY PETITION FOR 2014-15 FILED BEFORE THE 2ND RESPONDENT. EXHIBIT P4OF THE DEMAND NOTICE IN FORM NO.1 DATED 01.07.2019 FOR 2014-15 ISSUED BY THE 3RD RESPONDENT.