Hotel Kabani International vs. The Deputy Commissioner -1 - Kerala High Court, 12 January 2023

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. THUR AY, THE 12TH DAY OF JANUARY 2023 / 22ND POUSHA, 1944 WP(C) NO. 968 OF 2023 PETITIONER: HOTEL KABANI INTERNATIONAL MUVATTUPUZHA, ERNAKULAM- 686661 OWNED AND MANAGED BY MARYMATHA VENTURES INDIA(P)LTD REPRESENTED BY IT' S CHAIRMAN SRI. ROY K VARGHESE. BY ADVS. AJI V.DEV M.G.SHAJI ALAN PRIYADARSHI DEV S.SAJEEVAN RESPONDENTS: 1 THE DEPUTY COMMISSIONER -1 STATE GOODS AND SERVICES TAX DEPARTMENT, SPECIAL CIRCLE, MINI CIVIL STATION, PERUMBAVOOR, PIN – 683 542. 2 THE JOINT COMMISSIONER [APPEALS], STATE GOODS AND SERVICES TAX DEPARTMENT SGST COMPLEX,THEVARA, ERNAKULAM , PIN – 682 015. 3 THE DEPUTY COMMISSIONER, REVENUE RECOVERY,STATE GOODS AND SERVICES TAX DEPARTMENT, MINI CIVIL STATION, MUDAVOOR P.O, MUVATTUPUZHA, PIN – 686 669. OTHER PRESENT: ADV. THUSHARA JAMES (SR GP) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.P.(C)No.968/2023 2 JUDGMENT The petitioner suffered Ext.P1 order of assessment under the provisions of the Kerala General Sales Tax Act, 1963, for the assessment year 2020-21. The petitioner has filed Ext.P2 appeal along with Ext.P2(a) application for condonation of delay and Ext.P2(b) stay petition before the 2nd respondent. The pending consideration of the matter by the 2nd respondent, the petitioner has been served with Ext.P5 notice proposing to recover the amounts due from the petitioner under the provisions of the Revenue Recovery Act.

The learned counsel appearing for the petitioner submits that the writ petition may be disposed of directing the First appellate authority (2nd respondent) to consider and pass orders on Ext.P2(a) application for condonation of delay and Ext.P2(b) application for stay after affording an opportunity of hearing to the petitioner. It is submitted that the revenue recovery proceedings may be kept in abeyance till a decision is taken on those applications by the 1st appellate authority.

Heard the learned Senior Government Pleader also.

Having regard to the facts and circumstances of the case and considering the limited nature of the relief sought for by the petitioner, this Writ Petition will stand disposed of

W.P.(C)No.968/2023 3 directing that further steps for recovery of any amount due under Ext.P1 order of assessment shall be kept in abeyance till a decision is taken on Ext.P2(a) application for condonation of delay and on Ext.P2(b) application for stay filed in Ext.P2 appeal. The 2nd respondent shall dispose of Exts.P2(a) & P2(b) applications after affording an opportunity of hearing to the petitioner within a period of six weeks from the date of receipt of a certified copy of this judgment. It is made clear that, the First appellate authority (2nd respondent) needs to consider Ext.P2(b) stay petition on merits only if it is decides to condone the delay in filing the appeal. I make it clear that the issue regarding the liability of the petitioner to pay interest on the amount of turnover tax paid by the petitioner on parcel sales (as permitted by the Government during the COVID-19 pandemic) will be subject to the decision of this Court in similar matters. GOPINATH P. JUDGE ats

W.P.(C)No.968/2023 4 APPENDIX OF WP(C) 968/2023 PETITIONER EXHIBITS Exhibit P1OF THE ASSESSMENT ORDER PASSED FOR THE YEAR 2020-21 DATED: 28-04-2022 Exhibit P2OF THE APPEAL FILED AGAINST EXT.P.1 DATED: 08-07-2022 Exhibit P2(a)OF THE APPLICATION FOR CONDONATION OF DELAY DATED: 08-07-2022 Exhibit P2(b)OF THE APPLICATION FOR STAY OF COLLECTION OF TAX/INTEREST DATED: 08-07- 2022 Exhibit P3OF THE RELEVANT PAGE OF THE KERALA FINANCE ACT,2008 SHOWING LEVY OF CESS ON FOREIGN LIQUOR Exhibit P4OF THE RELEVANT PAGE OF THE KERALA FINANCE ACT,2018 SHOWING OMISSION OF CESS ON FOREIGN LIQUOR Exhibit P5OF THE REVENUE RECOVERY NOTICE ISSUED BY THE 3RD RESPONDENT DATED: 17-12- 2022