Maliekal Buildware vs. The Assistant Commissioner - Kerala High Court, 25 July 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI THUR AY, THE 25TH DAY OF JULY 2019 / 3RD SRAVANA, 1941 WP(C).No.20347 of 2019 PETITIONER/S: MALIEKAL BUILDWARE VYAPARABHAVAN COMPLEX, NORTH PARAVOOR, ERNAKULAM-683513, REPRESENTED BY ITS PROPRIETOR SRI. JOSEPH ANTONY. BY ADV. SRI.K.S.HARIHARAN NAIR RESPONDENT/S: 1 THE ASSISTANT COMMISSIONER SPECIAL CIRCLE, DEPARTMENT OF COMMERCIAL TAXES, MATTANCHERY AT ALUVA, PIN-683001. 2 THE DEPUTY COMMISSIONER OF STATE TAX (APPEALS), 5TH FLOOR, STATE GST COMPLEX, BEHIND CIVIL STATION, PALAKKAD - 678 001. *CORRECTED * THE ADDRESS OF THE 2ND RESPONDENT CORRECTED AS THE DEPUTY COMMISSIONER OF STATE TAX (APPEALS) COMMERCIAL TAXES COMPLEX, PERUMANOOR, ERNAKULAM- 682015 AS PER ORDER DATED 09.08.2019 IN IA 01/2019. GP. DR. THUSHARA JAMES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

-2- WP(C).No.20347 of 2019 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 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 petition is passed expeditiously. Hence the writ petition.

-3- WP(C).No.20347 of 2019

Perused Exts. P1, P2, P3. Prima facie I am satisfied that a case is made out for issuing necessary directions to 2nd respondent to dispose of the stay petition in Ext.P3. 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/2nd 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 JS

-4- WP(C).No.20347 of 2019 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF ASSESSMENT ORDER DATED 23.7.2018 ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2016-17. EXHIBIT P2 COPY OF THE APPEAL MEMORANDUM DATED 05.03.2019 AGAINST EXHIBIT P1. EXHIBIT P3 COPY OF THE STAY PETITION DATED 05.03.2019 IN EXHIBIT P2 APPEAL.