Bhavani Tea And Produce Co.LTD vs. The Assistant Commissioner Of State Tax - Kerala High Court, 29 March 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI FRIDAY ,THE 29TH DAY OF MARCH 2019 / 8TH CHAITHRA, 1941 WP(C).No. 9779 of 2019 PETITIONER: BHAVANI TEA AND PRODUCE CO.LTD POST BOX NO 10, PUNALUR-691 305, KERALA, REPRESENTED BY ITS MANAGING DIRECTOR MR.PRASAD OOMMEN. BY ADV. SRI.RAMESH CHERIAN JOHN RESPONDENTS: 1 THE ASSISTANT COMMISSIONER OF STATE TAX STATE GOODS AND SERVICES TAX DEPARTMENT,KOTTARAKARA. 2 DEPUTY COMMISSIONER (APPEALS)-1, STATE GST DEPARTMENT, KOLLAM SR. GP. SRI. C.K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

-2- WP(C).No. 9779 of 2019 JUDGMENT The petitioner challenges Ext.P7 order of stay granted by the 2nd respondent as illegal, that the orders also suffers from too much of brevity and there exists error apparent on the fare of the record. The 2nd respondent while considering the prayer for stay imposed condition of 25% ignoring the effect of Ext.P8 moratorium imposed by the State Government on collection of Agricultural income. The counsel for the petitioner lays much emphasis on the operative portion of Ext.P8 to contend that the impugned order is without reasons. Ext.P8 reads as follows: “steps for collection of balance amount for the year 2016-17 is stayed till the disposal of appeal subject to the condition that the appellant remit 25% of the balance tax and interest demanded for the year within three weeks from the date of receipt of this order. The appellant should also furnish adequate security for the balance amount to the satisfaction of the assessing authority. If any of the condition is not fulfilled stay granted will automatically vacate.”

-3- WP(C).No. 9779 of 2019

According to the counsel for petitioner, hardly any reason is given even for imposing the condition of 25% of tax as a condition for enjoying the benefit of stay. Therefore he prays for setting aside the order impugned in the writ petition.

The learned Government Pleader fairly states that the 2nd respondent ought to have considered the grounds on which stay was prayed for and the effect of Ext.P8 as well, while disposing of the stay application. He therefore, submits that instead of this Court considering the effect of Ext.P8, it is in fitness of things that the order impugned in the writ petition could be set aside, matter remitted to 2nd respondent for disposal afresh in accordance with law.

The stand of the respondent is taken note and the order impugned in the Ext.P7 is set aside. Matter remitted to 2nd respondent for consideration and disposal of the case within six weeks from the date of receipt of a copy of this

-4- WP(C).No. 9779 of 2019 order . There shall be stay of recovery for six weeks from today. Petitioner, if so advised can file written arguments as well before the 2nd respondent. The writ petition is ordered as indicated above. S.V. BHATTI JUDGE JS

-5- WP(C).No. 9779 of 2019 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1OF THE NOTICE ISSUED U/S 39 OF THE ACT DATED 7.12.2018 EXHIBIT P2OF THE REPLY TO THE PRE ASSESSMENT NOTICE DATED 20.12.2018 EXHIBIT P3OF THE INTIMATION DATED 8.10.2016 ISSUED U/S 143 (1) OF THE CENTRAL INCOME TAX ACT FROM THE CENTRALIZED PROCESSING CENTER INCOME TAX DEPARTMENT. EXHIBIT P4OF THE ORDER OF ASSESSMENT DATED 28.12.2018 EXHIBIT P5OF THE FORM OF APPEAL AND GROUNDS OF APPEAL DATED 1.2.2019 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT EXHIBIT P6OF THE FORM OF APPLICATION AND GROUNDS OF APPLICATION FOR STAY DATED 1.2.2019 EXHIBIT P7OF THE CONDITIONAL ORDER OF STAY DATED 8.3.2019 DIRECTING THE PETITIONER TO REMIT 25 % OF THE BALANCE DEMAND EXHIBIT P8OF THE TYPED COPY OF THE ORDER DATED 29.6.2018 ISSUED BY THE ADDITIONAL CHIEF SECRETARY ON BEHALF OF THE GOVERNMENT OF KERALA ALONG WITH THE ENGLISH TRANSLATION