BharatTaxGST

K.T.Manojkumar vs. The State Tax Officer

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OP (TAX)/12/2021HC KeralaGSTCNR KLHC01050024202116 September 2021Bench: HONOURABLE MR.JUSTICE S.V.BHATTI,HONOURABLE MR.JUSTICE VIJU ABRAHAM9 pages
For Respondent: SR GP SHAMSUDHEEN V.K.., ADV KRISHNA FOR THE PETITIONER

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Heard together (2 matters)

OP (TAX) NO. 12 OF 2021
OP (TAX) NO. 13 OF 2021

Read from the judgment's own cause title. This page is filed under one of them.

Cause title — parties, addresses and appearances
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI & THE HONOURABLE MR.JUSTICE VIJU ABRAHAM THURSDAY, THE 16TH DAY OF SEPTEMBER 2021 / 25TH BHADRA, 1943 OP (TAX) NO. 12 OF 2021 PETITIONER/APPELLANT/APPELLANT/ASSESSEE: K.T.MANOJKUMAR AGED 53 YEARS PROPRIETOR, M/S.GAYATHRI GRAND, OPP.GOVERNMENT HOSPITAL, CHERPULASSERY, PALAKKAD. BY ADVS. HARISANKAR V. MENON MEERA V.MENON RESPONDENT/RESPONDENT/RESPONDENT/REVENUE: 1 THE STATE TAX OFFICER WORKS CONTRACT, STATE GOODS AND SERVICES TAX DEPARTMENT, PALAKKAD-678001. 2 THE KERALA VALUE ADDED TAX APPELLATE TRIBUNAL CHEROOTTY ROAD, KOZHIKODE-673032, REPRESENTED BY ITS ASST. SECRETARY. OTHER PRESENT: SR GP SHAMSUDHEEN V.K.., ADV KRISHNA FOR THE PETITIONER THIS OP TAX HAVING COME UP FOR ADMISSION ON 16.09.2021, ALONG WITH OP (TAX).13/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(TAX Nos.12& 13 of 2021 2 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI & THE HONOURABLE MR.JUSTICE VIJU ABRAHAM THURSDAY, THE 16TH DAY OF SEPTEMBER 2021 / 25TH BHADRA, 1943 OP (TAX) NO. 13 OF 2021 AGAINST THE ORDER IN TAVAT 26/2021 OF AGRL.I.T.ADDITIONAL BENCH,KOZHIKODE, KOZHIKODE PETITIONER/APPELLANT/APPELLANT/ASSESSEE: K.T.MANOJKUMAR AGED 53 YEARS PROPRIETOR, M/S. GAYATHRI GRAND, OPP. GOVERNMENT HOSPITAL, CHERPULASSERY, PALAKKAD BY ADVS. HARISANKAR V. MENON MEERA V.MENON R.SREEJITH K.KRISHNA RESPONDENT/RESPONDENT/RESPONDENT/REVENUE: 1 THE STATE TAX OFFICER (WC) WORKS CONTRACT, STATE GOODS AND SERVICE TAX DEPARTMENT, PALAKKAD-678 001 2 THE KERALA VALUE ADDED TAX APPELLATE TRIBUNAL, CHEROOTTY ROAD, KOZHIKODE-673 032, REPRESENTED BY ITS ASST.SECRETARY OTHER PRESENT: SR GP SHAMSUDHEEN V.K.., ADV KRISHNA FOR THE PETITIONER THIS OP TAX HAVING COME UP FOR ADMISSION ON 16.09.2021, ALONG WITH OP (TAX).12/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(TAX Nos.12& 13 of 2021 3

JUDGMENT O.P.(TAX)Nos.12 & 13 of 2021 S.V.Bhatti, J. The appellant in T.A.(VAT) Nos.25 and 26 of 2021 is the petitioner. The petitioner filed the said Tax Appeals questioning the order dated 30.10.2020 of Deputy Commissioner (Appeals), SGST Department, Palakkad in KVATA Nos.153 and 154 of 2019. The petitioner moved stay petitions, INTP Nos. 30 and 31 of 2021, before the Appellate Tribunal. The Appellate Tribunal through the order in Ext.P4 granted stay of recovery of amount covered by the subject matter of appeal subject to the petitioner depositing 30% of the modified demand and also on furnishing simple bond for the balance amount within one month from 22.04.2021. The petitioner questions the condition directing deposit of 30% of the amount covered by the modified order. Hence the O.P.(Tax) before this Court under Article 227 of the Constitution of India.

2.

Adv.Harisankar V.Menon argues that the Tribunal is very right in granting stay of recovery of amount covered by the subject matter of appeals. However imposition of 30% as condition precedent

OP(TAX Nos.12& 13 of 2021 4 ignores the singular facts stated by the petitioner. The condition ought to be deleted in toto or if at all one is required instead of 30% a reasonable condition to prove the bona fides of the petitioner could have been imposed by the Appellate Tribunal.

3.

Senior Government Pleader Shamsudheen opposes the prayer, firstly, by arguing that the circumstances stated by the petitioner are in no way relevant for stipulating the condition of 30% deposit of modified order. If such conditions are interdicted as a matter of course, then the recovery of tax is adversely affected in all the pending matters. He further submits that the petitioner, it appears from record, has not furnished security for the balance amount in terms of the order in Ext.P4. Without prejudice and not recorded a concession by him, he informs the Court that the reasons stated by petitioner if weighs with the Court, instalments could be granted for depositing 30% of modified tax demand.

4.

We have perused the record and noted the submissions of the counsel appearing for the parties. Prima facie, we are of the view that the Tribunal has rightly exercised the discretion not only by granting the stay but has put the petitioner on reasonable condition. In the case on hand we would have certainly declined to exercise our juri iction under Article 227 of the Constitution for any purpose but for the fact that the petitioner

OP(TAX Nos.12& 13 of 2021 5 claims to have suffered a few set backs due to on going situation arising from Covid-19 and financial difficulties are being faced by petitioner.

Hence we are satisfied condition in Ext.P4 could be modified as follows: “The recovery proceedings are stayed till the disposal of the appeals subject to the condition the petitioner deposits 30% of the modified demand in three equal instalments, the first instalment becoming due and payable on or before 15/10/2021. The petitioner furnishes simple bond for the balance amount on or before 15/10/2021”. The petitioner commits default of one instalment, the stay granted by Ext.P4 and modified by this order would stand vacated. The Original Petition stands disposed of as indicated above. S.V.BHATTI JUDGE VIJU ABRAHAM JUDGE css/

OP(TAX Nos.12& 13 of 2021 6 APPENDIX OF OP (TAX) 13/2021 PETITIONER EXHIBITS Exhibit P1 COPY OF ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2012-13 Exhibit P2 COPY OF APPELLATE ORDER OF THE DY COMMISSIONER (APPEALS),PALAKKAD Exhibit P3 COPY OF APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT Exhibit P3(a) COPY OF STAY PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT 23.02.2021 Exhibit P4 COPY OF ORDER ISSUED BY THE 3RD RESPONDENT

OP(TAX Nos.12& 13 of 2021 7 APPENDIX OF OP (TAX) 12/2021 PETITIONER EXHIBITS Exhibit P1 COPY OF ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2010-11 DATED 27.07.2019. Exhibit P2 COPY OF APPELLATE ORDER OF THE DY.COMMISSIONER (APPEALS), PALAKKAD DATED 30.10.2020. Exhibit P3 COPY OF APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 23.02.2021. Exhibit P3(a) COPY OF STAY PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 23.02.2021. Exhibit P4 COPY OF ORDER ISSUED BY THE 2ND RESPONDENT DATED 22.04.2021. OP(TAX Nos.12& 13 of 2021 8

OP(TAX Nos.12& 13 of 2021 9

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.