Symphony Hospitality Management (P) Limited vs. The State Tax Officer(Lt) - Kerala High Court, 10 January 2022

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 10TH DAY OF JANUARY 2022 / 20TH POUSHA, 1943 OP (TAX) NO. 5 OF 2022 AGAINST THE ORDER IN TA(VAT)NO.12/2021 OF AGRL.INCOME TAX & SALS TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH,KOTTAYAM PETITIONER/APPELLANT/ASSESSEE: SYMPHONY HOSPITALITY MANAGEMENT (P) LIMITED, MARARIKULAM, ALAPPUZHA, REPRESENTED BY ITS DIRECTOR LALI MATHEW BY ADVS. HARISANKAR V. MENON MEERA V.MENON R.SREEJITH K.KRISHNA RESPONDENTS/REVENUE: 1 THE STATE TAX OFFICER(LT) STATE GOODS AND SERVICES TAX DEPARTMENT, ALAPPUZHA-688001 2 THE KERALA VALUE ADDED TAX APPELLATE TRIBUNAL, ADDL. BENCH, NAGAMBADOM, KOTTAYAM-686001 REPRESENTED BY ITS ASST. SECRETARY. BY SR GP SRI.V.K SHAMSUDHEEN THIS OP TAX HAVING COME UP FOR ADMISSION ON 10.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT Dated this the 10th day of January, 2022 A.K.Jayasankaran Nambiar, J. This OP(Tax) is preferred impugning Ext.P6 order of the appellate Tribunal that directed a payment of 10% of the disputed tax and furnishing of security for the balance tax by the assessee as a condition for the grant of stay of recovery of the balance tax pending disposal of the second appeal.

The learned counsel for the petitioner would submit that the appellate Tribunal, while considering the stay petition did not take note of the stay order passed by this Court staying recovery steps pursuant to the assessment orders for the assessment years 2013-2014 and 2014-2015 pending disposal of the writ petition. It is stated that while a similar demand for the assessment year 2015-2016 was being considered by the appellate Tribunal, an unconditional order of stay ought to have been passed by the Tribunal taking note of the stay of recovery proceedings directed by this Court in the previous assessment years.

We have heard Sri.Harisankar V Menon, the learned counsel for the petitioner and Sri.V.K.Shamsudheen, the learned Senior Government Pleader for the respondents. 4 On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, we find force in the contention of the learned counsel for the petitioner that under the circumstances where the petitioner had obtained a complete stay of recovery of similar demand for the previous assessment years, the appellate Tribunal ought not to have imposed any condition while considering a similar issue for the subsequent assessment years. We, therefore, set aside Ext.P6 interim order of the appellate Tribunal and direct that there shall be a complete stay of recovery of the disputed demand for the assessment year 2015-2016 pending disposal of the TA(VAT)No.12 of 2021 by the Tribunal. The OP(Tax) is allowed as above. A.K.JAYASANKARAN NAMBIAR, JUDGE MOHAMMED NIAS.C.P., JUDGE dlk/10.01.22 APPENDIX OF OP (TAX) 5/2022 PETITIONER'S EXHIBITS Exhibit P1 COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2015-16 DATED 24.12.2019 Exhibit P2 COPY OF APPELLATE ORDER OF THE JOINT COMMISSIONER (APPEALS), PALAKKAD DATED 16.03.2021 Exhibit P3 COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 15.07.2021 Exhibit P3(A) COPY OF THE STAY PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 15.07.2021 Exhibit P4 COPY OF THE ORDER ISSUED BY THE COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM DATED 17.08.2016 Exhibit P5 COPY OF THE ORDER IN WP(C)NO.33189/2017 OF THIS HON'BLE COURT DATED 19.10.2017 Exhibit P5(a) COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2016-17 DATED 01.10.2020 Exhibit P5(b) COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2017-18 DATED 01.06.2020 Exhibit P6 COPY OF THE ORDER IN TA(VAT)NO.12/2021 ISSUED BY THE RESPONDENT DATED 03.11.2021