M/S. Metro Aggregates & Sand (INDIA) PVT. LTD. vs. The Commercial Tax Officer (Wc)
Original PDF →IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR & THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. MONDAY, THE 20TH DAY OF FEBRUARY 2023 / 1ST PHALGUNA, 1944 OP (TAX) NO. 1 OF 2023 AGINST THE ORDER IN TA (VAT) NO.214/2022 OF THE KERALA VALUE ADDED TAX APPELLATE TRIBUNAL, ERNAKULAM DATED 03.01.2023 PETITIONER/APPELANT/APPELANT/ASSESSEE: M/S. METRO AGGREGATES & SAND (INDIA) PVT. LTD. PONNURUNNI, VYTTILA, ERNAKULAM,PIN - 682019 REPRESENTED BY ITS MANAGING DIRECTOR, JOSHY.P.MATHEW, BY ADVS. HARISANKAR V. MENON MEERA V.MENON R.SREEJITH K.KRISHNA RESPONDENTS/RESPONDENT/RESPONDENT/REVENUE: 1 THE COMMERCIAL TAX OFFICER (WC) STATE GOODS AND SERVICES TAX DEPARTMENT, ERNAKULAM, PIN - 682018 2 THE KERALA VALUE ADDED TAX APPELLATE TRIBUNAL TAXES COMPLEX, THEVARA, ERNAKULAM,PIN – 682013 REPRESENTED BY ITS ASST. SECRETARY, OTHER PRESENT: GP MM JASMINE THIS OP TAX HAVING COME UP FOR ADMISSION ON 20.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
:2: OP (TAX) Nos. 1 & 2 of 2023 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR & THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. MONDAY, THE 20TH DAY OF FEBRUARY 2023 / 1ST PHALGUNA, 1944 OP (TAX) NO. 2 OF 2023 AGINST THE ORDER IN TA (VAT) NO.214/2022 OF THE KERALA VALUE ADDED TAX APPELLATE TRIBUNAL, ERNAKULAM DATED 03.01.2023 PETITIONER/APPELANT/APPELANT/ASSESSEE: M/S. METRO AGGREGATES & SAND (INDIA) PVT. LTD. PONNURUNNI, VYTTILA, ERNAKULAM REPRESENTED BY ITS MANAGING DIRECTOR, JOSHY.P.MATHEW, PIN - 682019 BY ADVS. HARISANKAR V. MENON MEERA V.MENON R.SREEJITH K.KRISHNA RESPONDENTS/RESPONDENT/RESPONDENT/REVENUE: 1 THE COMMERCIAL TAX OFFICER (WC) STATE GOODS AND SERVICES TAX DEPARTMENT, ERNAKULAM, KOCHI, PIN - 682018 2 THER KERALA VALUE ADDED TAX APPELLATE TRIBUNAL TAXES COMPLEX, THEVARA, ERNAKULAM, KOCHI , REPRESENTED BY ITSASST. SECRETARY, PIN - 638201 OTHER PRESENT: GP MM JASMINE THIS OP TAX HAVING COME UP FOR ADMISSION ON 20.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
:3: OP (TAX) Nos. 1 & 2 of 2023 A.K.JAYASANKARAN NAMBIAR & MOHAMMED NIAS C.P., JJ ............................................................ OP(TAX) Nos. 1 & 2 of 2023 .................................................................. Dated this the 20th day of February, 2023. JUDGMENT A.K.Jayasankaran Nambiar, J. Both these OP Tax matters are preferred impugning the common order dated 03.01.2023 of the Kerala Value Added Tax Act (KVAT) Appellate Tribunal in INTP. Nos. 290/22 and 283/22 in T.A (VAT) Nos. 214/22 and 207/22. By the said order, the Appellate Tribunal, while considering Interlocutory Applications for stay of the demand of tax confirmed by the lower authorities, took note of the case of the petitioners against demands of Rs. 52,27,500/- and Rs. 66,81,125/-, that had been raised for the assessment years 2014-2015 and 2015-2016 under the KVAT Act 2003. Although, the said demands of tax had been modified by the 1st Appellate Authority, the appellant was not satisfied with the 1st Appellate order and had preferred further appeals before the Tribunal .
The Tribunal, while considering the stay petition, found that
:4: OP (TAX) Nos. 1 & 2 of 2023 the petitioners had made out a prima facie arguable case for the stay of collection of tax pending disposal of the appeals but, taking note of the statutory provisions which envisaged the payment of 20% of the demand for an automatic stay of the recovery of balance tax assessed against the petitioners, directed that the stay against recovery of the tax demand could be granted on payment of 20% of the demanded tax and on executing a simple bond for the balance before the Assessing Authority within one month from the date of the receipt of the order of the Tribunal. It is aggrieved by the said conditional order of stay in the appeals that the petitioners preferred these OP (TAXs).
We have heard Sri. Harisankar V. Menon, the learned counsel appearing for the petitioners and Smt. M.M. Jasmine, the learned Government Pleader appearing for the respondents.
On a consideration of the facts and circumstances of the case and the submissions made across the bar, we find that while it may be a fact, that the Tribunal found the petitioners to have made out a prima facie case on merits for the grant of a stay of recovery of the tax amounts demanded for the assessment years in question, we note that the statutory scheme itself contemplates a situation where if the assessee pays 20% of the tax demanded in the assessment order, then,
:5: OP (TAX) Nos. 1 & 2 of 2023 there would be an automatic stay of recovery of the balance amount pending the appellate proceedings.
It is perhaps against the back drop of the said statutory scheme that the Tribunal did not proceed to consider the actual financial position of the petitioners for the grant of stay, since, the minimum pre-deposit indicated by the statute, in the absence of exceptional circumstances, was to an extent of 20% of the tax confirmed by the Assessing Authority. At any rate, we find that the petitioners have also been served with penalty orders for the same offence under the KVAT Act for the assessment years in question and the respondents have not taken any recovery steps for recovery of the penalty amounts confirmed against the petitioners.
Under these circumstance, we see no reason to interfere with the impugned interim order of the Tribunal that merely directs the petitioners to pay 20% of the tax demands for the assessment years in question pending disposal of the appeals.
These OP (TAXs) 1 & 2 of 2023, fail and are accordingly dismissed.
:6: OP (TAX) Nos. 1 & 2 of 2023 Taking note of the submissions of the learned counsel for the petitioners that he requires some time to make the deposit directed by the Tribunal, we direct that if the petitioner pays the amounts directed to be paid by the Tribunal in the impugned orders on or before 15.03.2023, then the said payments shall be treated as in compliance with the directions of the Tribunal in the impugned orders. A.K.JAYASANKARAN NAMBIAR, JUDGE MOHAMMED NIAS C.P., JUDGE mtk
:7: OP (TAX) Nos. 1 & 2 of 2023 APPENDIX OF OP (TAX) 1/2023 PETITIONER EXHIBITS Exhibit P1 COPY OF ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2014-15 DTD. 22- 02-2017 Exhibit P2 COPY OF ORDER ISSUED BY THE JOINT COMMISSIONER (APPEALS), ERNAKULAM IN KVATA NO. 2314/17 DTD. 05-05-2022 Exhibit P3 COPY OF APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DTD. 20-07-2022 Exhibit P4 COPYOF STAY PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DTD. 20-07-2022 Exhibit P5 ORIGINAL COMMON ORDER IN TA (VAT) NOS. 214/22 & 207/2022 ISSUED BY THE 2ND RESPONDENT DTD. 03-01-2023
:8: OP (TAX) Nos. 1 & 2 of 2023 APPENDIX OF OP (TAX) 2/2023 PETITIONER EXHIBITS Exhibit P1 COPY OF ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2015-16 DTD. 27- 04-2017 Exhibit P2 COPY OF APPELLATE ORDER IN KVATA NO. 2313/17 DTD. 05-05-2022 Exhibit P3 COPY OF APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DTD. 20-07-2022 Exhibit P4 COPY OF STAY PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DTD. 20-07-2022 Exhibit P5 COPY OF COMMON ORDER IN TA (VAT) NOS. 214/22 & 207/22 ISSUED BY THE 2ND RESPONDENT DTD. 03-01-2023
Reproduced from the public record of the Kerala High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.