Teekay Agencies vs. The Assistant Commissioner Of State Tax. Spl. Circle - Kerala High Court, 08 July 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI MONDAY, THE 08TH DAY OF JULY 2019 / 17TH ASHADHA, 1941 WP(C).No.18410 of 2019 PETITIONER/S: TEEKAY AGENCIES,VALAYAMKULAM P.O. KOKKUR-679 591 REP. BY T.K. SAJU, PROPRIETOR. BY ADVS. SRI.P.RAGHUNATH SRI.PREMJIT NAGENDRAN RESPONDENT/S: 1 THE ASSISTANT COMMISSIONER OF STATE TAX. SPL. CIRCLE, STATE GST DEPT. MALAPPURAM-676 505 2 THE KERALA VAT APPELLATE TRIBUNAL, ADDL. BENCH. KOZHIKODE-673 032 3 THE DEPUTY TAHSILDAR, PATTAMBI TALUK, PATTAMBI-679 303 GP DR. THUSHARA JAMES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No.18410 of 2019 2 JUDGMENT Heard the learned counsel appearing for the petitioner and the learned Government Pleader appearing for the respondents.

The petitioner, aggrieved by the assessment order dated 30.12.2016 for the assessment year 2014-2015, filed Exts.P3 appeal and P4 stay petition before the Appellate Tribunal. The Appellate Tribunal in Ext.P5 considered the request of the petitioner for granting stay of the order under appeal by imposing the following conditions. “(a) This petition is allowed: (b) The recovery proceedings are stayed till the disposal of the Appeal or for 6 months, whichever happens earlier, on the petitioner depositing 20% of the disputed demand and furnishing security for the balance amount within one month from today;”

The petitioner challenges Ext.P5 order imposing condition of depositing 20% as disproportionate keeping in view a prima facie case now made out by the petitioner through the memorandum of appeal. The counsel for the petitioner, refers to the filing of C-Forms along with the memorandum of the appeal with sufficient reason for delay, however he has fairly stated that the said material is be considered by the Tribunal, but not this Court while examining Ext.P5. He prays for reducing the 20% condition imposed by the Tribunal and alternatively to grant sufficient time to comply with the condition imposed in Ext.P5 order.

The Government Pleader opposes relaxation of 20% condition

WP(C).No.18410 of 2019 3 imposed by the Tribunal in Ext.P5 states that the petitioner from the date of Ext.P5 enjoyed two months beyond the time granted by the Tribunal without depositing a single rupee.

The petitioner is in appeal in Ext.P3. Exts.P6 and P7 are issued due to petitioner's failure to comply with the condition. The appeal is a substantive remedy and the appeal is still pending. To enable the petitioner to effectively pursue the remedy of appeal before the Appellate Tribunal and keeping in view the circumstances stated in the Writ Petition, this Court is convinced to grant six more weeks in two equal instalments from today for complying with the 20% condition imposed in Ext.P5 order. Accordingly petitioner shall pay 10% of the tax demanded within three weeks from today and another 10% within three weeks thereafter. The petitioner, if commits default in payment of any one of these instalments, the petitioner is not entitled to the stay granted either by Ext.P5 or this order. Subject to complying with the condition, Exts.P6 and P7 are kept in abeyance for six weeks from today. Complying with the deposit condition, it is made clear that it is subject to further orders passed in the appeal pending before the Appellate Tribunal. S.V.BHATTI JUDGE WP(C).No.18410 of 2019 4 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 PHOTOCOPY OF ASSESSMENT ORDER FOR 2014-15 (CST) DT. 30.12.2016. EXHIBIT P2 PHOTOCOPY OF APPELLATE ORDER IN VATA NO. 400/2017 DT. 29.11.2017 FOR 2014-15. EXHIBIT P3 PHOTOCOPY OF THE APPEAL FILED FOR 2014-15 BEFORE SECOND RESPONDENT. EXHIBIT P4 PHOTOCOPY OF APPLICATION FOR STAY FILED ALONG WITH EXT. P3. EXHIBIT P5 PHOTOCOPY OF ORDER DATED 25.03.2019 BY SECOND RESPONDENT ON EXT.P4. EXHIBIT P6 COPY OF RR NOTICE DATED 8.3.19 (FORM-1) WITH ENGLISH TRANSLATION. EXHIBIT P7 COPY OF RR NOTICE DT. 8.3.19 (FORM 10)WITH ENGLISH TRANSLATION.