K.Raghunathan vs. Deputy Commissioner - Kerala High Court, 21 June 2021

Heard together (2 matters)

WA NO. 776 OF 2021

WP(C) 4372/2021

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 BECHU KURIAN THOMAS MONDAY, THE 21ST DAY OF JUNE 2021 / 31ST JYAISHTA, 1943 WA NO. 776 OF 2021 AGAINST THE JUDGMENT IN WP(C) 4372/2021 OF HIGH COURT OF KERALA, ERNAKULAM APPELLANT/S: K.RAGHUNATHAN AGED 61 YEARS PROPRIETOR, M/S. K.R. INN, DOOR NO. 7/274E, PERUMPILAVU, KARIKKAD P.O. THRISSUR DISTRICT 680 519. BY ADV TOMSON T.EMMANUEL RESPONDENT/S: 1 DEPUTY COMMISSIONER FORMERLY, ASSISTANT COMMISSIONER, STATE GOODS AND SERVICES TAX DEPARTMENT, SPECIAL CIRCLE, PUTHOLE, THRISSUR 680 004. 2 INTELLIGENCE OFFICER SQUAD NO.IV, STATE GOODS AND SERVICE TAX COMPLEX, PUTHOLE, THRISSUR- 680004. 3 DEPUTY COMMISSIONER (APPEALS) STATE GOODS AND SERVICES TAX COMPLEX, PUTHOLE, THRISSUR-680004. 4 THE KERALA VALUE ADDED TAX APPELLATE TRIBUNAL THEVARA, ERNAKULAM, COCHIN-682015. 5 DEPUTY COMMISSIONER STATE GOODS AND SERVICES TAX DEPARTMENT, PUTHOLE, THRISSUR-680004. OTHER PRESENT: SR GP MOHD RAFIQ THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 21.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A. No. 776/2021 -2-

J U D G M E N T S.V. Bhatti, J. Petitioner is the appellant. The appellant filed Tax Appeal questioning the order dated 20.12.2019 of Deputy Commissioner (Appeals), SGST Department, Thrissur in STA No.259/2018. The appellant moved stay petition, INTP No. 23 of 2020, before the Appellate Tribunal. The Appellate Tribunal through the order in Ext.P7 granted stay of recovery of amount covered by the subject matter of appeal, subject to the appellant depositing 30% of the existing demand and also on furnishing simple bond for the balance amount within one month. The appellant questioned the condition directing deposit of 30% of the amount covered by the modified order in W.P.(C) No.4372/2021. The learned Single Judge, through the judgment impugned in the appeal, disposed of the writ petition filed by the appellant -3- with liberty to approach the Tribunal for instalments and expeditious disposal of appeal. The assessee aggrieved by the judgment is in appeal.

Adv.Tomson T. Emmanuel argues that the Tribunal is very right in granting stay of recovery of amount covered by the subject matter of appeal. However, imposition of 30% as condition precedent ignores the singular fact stated by the appellant. 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 appellant could have been imposed by the Appellate Tribunal.

Senior Government Pleader Mohammed Rafiq opposes the prayer, firstly, by arguing that the circumstances stated by the appellant are in no way relevant for stipulating the condition of 30% deposit of existing demand. If such conditions are interdicted, as a matter of course, then the -4- recovery of tax is adversely affected in all the pending matters. Without prejudice and not recording a concession as made by him, he informs the Court that the reasons stated by appellant if weighs with the Court, instalments could be granted for depositing 30% of existing tax demand.

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 appellant on reasonable condition. The learned Judge, as well for valid reasons, declined to entertain the writ petition. In the case on hand, we would have certainly declined to exercise our juri iction for any purpose but for the fact that the appellant claims to have prima facie case and the points for consideration are substantially covered by the judgments of this Court. Hence, we are satisfied, condition in Ext.P7 could be modified as -5- follows: “The recovery proceedings are stayed till the disposal of the appeal subject to the condition the appellant deposits 30% of the existing demand in four equal instalments, the first instalment becoming due and payable on or before 22nd July 2021. The appellant furnishes simple bond for the balance amount on or before 22nd July 2021”. The appellant commits default of two consecutive instalments, the stay granted by Ext.P7 and modified by this judgment would stand vacated. The Writ Appeal stands disposed of as indicated above. S.V.BHATTI JUDGE BECHU KURIAN THOMAS JUDGE jjj -6- APPENDIX OF WA 776/2021 PETITIONER ANNEXURE Annexure IOF JUDGMENT DATED 20.03.2018 IN WRIT APPEAL NO.679 OF 2018 PASSED BY THIS HON'BLE COURT IN HOLDING THAT ESTIMATION OF GROSS PROFIT UNDER WEIGHTED AVERAGE TO ESTIMATE TURNOVER IS NOT PERMISSIBLE. Annexure IIOF REPORTED DECISION OF THIS HON'BLE VS.COMMISSIONER OF SALES TAX, DELHI AND ANOTHER.