Hi-Lite Builders Private Limited vs. The Deputy Commissioner(Appeals) - Kerala High Court, 23 January 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU WEDNE AY,THE 23RD DAY OF JANUARY 2019 / 3RD MAGHA, 1940 RP.No. 5 of 2019 IN WP(C). 41721/2018 AGAINST THE JUDGMENT IN WP(C) 41721/2018 of HIGH COURT OF KERALA ================ PETITIONER/PETITIONER IN WRIT PETITION: HI-LITE BUILDERS PRIVATE LIMITED HI-LITE CITY, THONDAYAD, CALICUT (REPRESENTED BY ITS MANAGING DIRECTOR MR.P.SULAIMAN) BY ADV. SRI.M.P.SHAMEEM AHAMED RESPONDENTS/RESPONDENTS IN WRIT PETITION: 1 THE DEPUTY COMMISSIONER(APPEALS) STATE GST DEPARTMENT, KOZHIKKODE-673 001. 2 THE STATE TAX OFFICER(WORKS CONTRACT) STATE GST DEPARTMENT, KOZHIKODE 673 001. 3 THE SALES TAX OFFICER(RECOVERY) OFFICE OF THE DEPUTY COMMISSIONER, STATE GST DEPARTMENT, KOZHIKODE 673001. 4 STATE OF KERALA REPRESENTED BY THE SECRETARY, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. GP DR. THUSHARA JAMES. THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 23.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

RP.No. 5 of 2019 IN WP(C). 41721/2018 2 JUDGMENT The petitioner, a dealer in KVAT Act 2003, seeks the following reliefs: “i) to allow the review petition and modify the condition imposed in Exhibit P9 stay order to the extent it says that the petitioner shall pay 20% of the 'demand' for stay of recovery of balance amount. ii) to direct the first respondent to dispose of the Exhibit P7 appeal as expeditiously as possible in a time bound manner.”

On 20.12.2018 this Court disposed of the Writ Petition holding that the petitioner be guided by the ratio of the judgment dated 06.09.2018 in W.P.(C)No.29440/2018. 3. Now the petitioner has filed this Review Petition contending that the condition in Ext.P9 order of the appellate authority is more onerous than what has been statutorily mandated under the proviso to Section 55(4) of the KVAT Act. According to him, 20% must be of the disputed tax, rather than “the existing demand”, which includes interest as well. According to him, it will suffice if the authorities strictly adhere to the proviso to Section 55(4) of the Act.

To avoid ambiguity about the quantum to be paid by the petitioner as the pre-deposit before the appellate authority, the

RP.No. 5 of 2019 IN WP(C). 41721/2018 3 learned Government Pleader, on instructions, informed the Court that the amount is Rs.2,93,81,208/-. According to her, that is 20% of the disputed tax. On this quantification, the petitioner's counsel agrees.

I, therefore, modify the judgment dated 20.12.2018 and hold that though the ratio of the judgment dated 06.09.2018 in W.P. (C)No.29440/2018 applies as already indicated, the petitioner must pay Rs.2,93,81,208/-(20%) in six instalments. The appellate authority may dispose of the appeal expeditiously. The Review Petition is disposed of accordingly. DAMA SESHADRI NAIDU JUDGE