H & Co Impex And Trading vs. The State Tax Officer-Ii - Kerala High Court, 24 March 2022

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS THURSDAY, THE 24TH DAY OF MARCH 2022 / 3RD CHAITHRA, 1944 WP(C) NO. 9932 OF 2022 PETITIONER: M/S.H & CO IMPEX AND TRADING V/177-C, MUDICKKAL P.O, VAZHAKKULAM, PERUMBAVOOR, REPRESENTED BY ITS MANAGING PARTNER, M.H. RASHEED. BY ADV N.MURALEEDHARAN NAIR RESPONDENTS: 1 THE STATE TAX OFFICER-II STATE GOODS AND SERVICES TAX DEPARTMENT, FIRST CIRCLE, MINI CIVIL STATION, PERUMBAVOOR – 683542. 2 THE INTELLIGENCE OFFICER. DEPARTMENT OF COMMERCIAL TAXES, INTELLIGENCE SQUAD NO.II, MATTANCHERRY AT KARUKUTTY - 683576. 3 THE DEPUTY COMMISSIONER STATE GOODS AND SERVICES TAX DEPARTMENT, ERNAKULAM, KOCHI - 682015. 4 THE DEPUTY COMMISSIONER STATE GOODS AND SERVICE TAX DEPARTMENT, KERALA, MUDAVOOR P.O, MUVATTUPUZHA – 686669. BY ADV.M.M.JASMINE – G.P. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 9932 OF 2022 2 BECHU KURIAN THOMAS, J. =========================== W.P.(C) No.9932 of 2022 ============================ Dated this the 24th day of March, 2022

JUDGMENT Petitioner challenges Ext.P9 and Ext.P10 prohibitory orders issued by the 3rd respondent both dated 07.03.2022. 2. As per the impugned orders dated 07.03.2022, issued under Section 19 of the Kerala Revenue Recovery Act, 1968, a prohibitory order has been issued to the Branch Manager of The Union Bank of India, Perumbavoor Branch, restraining him from making payment of any amount from the account standing in the name of the petitioner until further orders from the 3rd respondent. A further direction has been issued in Ext.P10, to remit the money in the petitioner’s account to the extent of Rs.33,05,042/- to the State Tax Officer immediately. The said orders have been issued on the basis that petitioner is liable to WP(C) NO. 9932 OF 2022 3 pay an amount of Rs.33,05,042/-, being the liability incurred under an order of assessment and penalty for the year 2016-17. 3. The learned counsel for the petitioner submitted that challenging the order of assessment as well as the penalty, appeals have been preferred before the 3rd respondent and while the same was pending, the prohibitory orders were issued. The learned counsel further submitted that the prohibitory order has completely paralyzed the functioning of the petitioner and the same has been issued without any basis and are contrary to law.

The learned Government Pleader, Smt.M.M.Jasmin, submitted that the prohibitory order was issued, since there was no restraint against recovery of the amount imposed, under the assessment order as well as the penalty order and that the appeal itself was filed belatedly.

Having regard to the circumstances and the fact that the appeal filed by the petitioner is pending consideration before the 3rd respondent, I am of the view that the prohibitory orders

WP(C) NO. 9932 OF 2022 4 issued as Ext.P9 and Ext.P10 ought to be stayed, on condition that petitioner deposits an amount equivalent to 20% of the tax and penalty demanded under Ext.P1 assessment order and Ext.P2 penalty order for the years 2016-17. If the said amount is deposited, Ext.P9 and Ext.P10 prohibitory orders shall stand stayed until disposal of the appeal. The writ petition is disposed of. BECHU KURIAN THOMAS JUDGE ssa/

WP(C) NO. 9932 OF 2022 5 APPENDIX OF WP(C) 9932/2022 PETITIONER’S EXHIBITS Exhibit P1OF THE ASSESSMENT ORDER PASSED BY THE 1ST RESPONDENT FOR THE YEAR 2016-17 DATED 27.12.2019. Exhibit P2OF THE PENALTY ORDER PASSED BY THE 2ND RESPONDENT FOR THE YEAR 2016-17 DATED 30.03.2019. Exhibit P3OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 14.03.2022 (ASSMT). Exhibit P4OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 14.03.2022 (PENALTY) Exhibit P5OF THE DELAY CONDONATION PETITION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 14.03.2022(ASSMT) Exhibit P6OF THE DELAY CONDONATION PETITION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 14.03.2022(PENALTY) Exhibit P7OF THE STAY PETITION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 14.03.2022 (ASSMT). Exhibit P8OF THE STAY PETITION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 14.03.2022 (PENALTY) Exhibit P9OF THE PROHIBITORY ORDER ISSUED BY THE 4TH RESPONDENT DATED 07.03.2022. Exhibit P10OF THE PROHIBITORY ORDER ISSUED BY THE 4TH RESPONDENT DATED 07.03.2022. (RRC.NO. 367/19-20 @ 30/20-21)