P.K.Joy vs. State Tax Officer(Ib) - Kerala High Court, 09 October 2019

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR WEDNESDAY, THE 09TH DAY OF OCTOBER 2019 / 17TH ASWINA, 1941 WP(C).No.21573 OF 2019(V) PETITIONER/: P.K.JOY PADIKALA HOUSE, OLLUR P.O., 680 306, MG. PARTNER OF HYMA GOLD SUPER MARKET (DEFUNCT), MAIN ROAD, ATTINGAL THIRUVANANTHAPURAM 695101. BY ADVS. SRI.K.N.SREEKUMARAN SRI.P.J.ANILKUMAR (A-1768) SRI.N.SANTHOSHKUMAR RESPONDENTS: 1 STATE TAX OFFICER(IB) STATE GOODS AND SERVICES TAX DEPARTMENT, INVESTIGATION BRANCH, TAX TOWER, KARAMANA, THIRUVANANTHAPURAM 695 002. 2 STATE TAX OFFICER, STATE GOODS AND SERVICES TAX DEPARTMENT, MINI CIVIL STATION, ATTINGAL, THIRUVANANTHAPURAM 695 101. 3 DEPUTY COMMISSIONER (APPEALS), STATE GOODS AND SERVICES TAX DEPARTMENT, KARAMANA, THIRUVANANTHAPURAM 695 002. 4 KVAT TRIBUNAL,ADDL. BENCH, SASTHAMANGALAM, THIRUVANANTHAPURAM 695 010, (REPRESENTED BY ITS ASSISTANT SECRETARY). 5 THE DEPUTY TAHSILDAR, THRISSUR TALUK, THRISSUR 680 001. R1-5 BY GOVERNMENT PLEADER SMT.M.M.JASMINE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.21573 OF 2019(V) 2

JUDGMENT The challenge in the Writ Petition is against Ext.P7 common order passed by the appellate Tribunal in stay petitions preferred by the petitioner along with appeals preferred against the order of the 1st appellate authority under the Kerala Value Added Tax Act confirming the assessment as also the penalty imposed on the petitioner. A perusal of Ext.P7 order indicates that the appellate Tribunal after considering the prima facie case projected by the petitioner found it fit to direct the petitioner to deposit 30% of the amount confirmed against him by the assessment and penalty orders, pending disposal of the appeals before it. In the Writ Petition, it is the case of the petitioner that Ext.P7 order is vitiated by a patent non-application of mind inasmuch as the dire financial position of the petitioner was not even adverted to by the appellate authority. In this connection, I find from a perusal of the affidavit filed in support of the stay petitions, as also from the memorandum of appeals filed before the Appellate Tribunal, that there was no material produced by the petitioner before the Tribunal to support his contention with regard to his alleged poor financial condition. Under these circumstances, the non-consideration of the plea of financial hardship by the Tribunal while passing Ext.P7 order cannot be said to be the result of a non-application of mind by the appellate

WP(C).No.21573 OF 2019(V) 3 Tribunal. Resultantly, I do not find Ext.P7 order to be vitiated by any juri ictional error or non-compliance with the rules of natural justice so as to warrant an interference with the same in these proceedings under Article 226 of the Constitution of India. The Writ petition in its challenge against Ext.P7 order therefore fails and is accordingly dismissed. Taking note of the submission of the learned counsel for the petitioner that he would require some time to comply with the directions of the Tribunal in Ext.P7 order, I direct that if the petitioner complies with the directions in Ext.P7 order within three weeks from the date of receipt of a copy of this judgment, then the Tribunal shall treat the said compliance as within the time granted in Ext.P7 order and proceed to consider the appeals preferred by the petitioner on merits. A.K.JAYASANKARAN NAMBIAR

JUDGE mns

WP(C).No.21573 OF 2019(V) 4 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1OF THE PENALTY ORDER FOR 2011-12 DATED 18.12.2017 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P2OF THE ASSESSMENT ORDER DATED 30.1.2018 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P3OF THE APPELLATE ORDERS NO. K-40/18 DATED 22.10.2018 AGAINST EXT. P1 OF THE 3RD RESPONDENT. EXHIBIT P4OF THE APPELLATE ORDER NO. K-269/18 DATED 22.10.2018 OF THE 3RD RESPONDENT. EXHIBIT P5OF THE APPEAL MEMORANDUM AGAINST EXT. P3 FILED BEFORE THE 4TH RESPONDENT ON 8.3.2019. EXHIBIT P5 AOF THE STAY PETITION FIELD IN EXT. P5 APPEAL BEFORE THE 4TH RESPONDENT ON 8.3.2019. EXHIBIT P5 BOF THE EARLY HEARING PETITION FILED IN EXT. P5 APPEAL BEFORE THE 4TH RESPONDENT ON 8.3.2019. EXHIBIT P5 COF THE AMENDMENT PETITION FILED IN EXT. P5 APPEAL BEFORE THE 4TH RESPONDENT ON 26.6.2019 EXHIBIT P6OF THE APPEAL MEMORANDUM AGAINST EXT. P4 FILED BEFORE THE 4TH RESPONDENT ON 8.3.2019. EXHIBIT P6 AOF THE STAY PETITION FILED IN EXT. P6 APPEAL BEFORE THE 4TH RESPONDENT ON 8.3.2019 EXHIBIT P6 BOF THE EARLY HEARING PETITION FILED IN EXT. P6 APPEAL BEFORE THE 4TH RESPONDENT ON 8.3.2019. WP(C).No.21573 OF 2019(V) 5 EXHIBIT P7OF THE COMMON ORDER NO. IP 107/2019 IN TA (VAT) 64/2019 AND IP 110/2019 IN TA (VAT) 65/2019 DATED 1.7.2019 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P8OF THE RECOVERY NOTICE NO. RRC 2018/2297/01 DATED 2.3.2018 ISSUED BY THE 5TH RESPONDENT IN MALAYALAM ALONG WITH ENGLISH TRANSLATION. RESPONDENTS EXHIBITS:NIL //// P.A TOJUDGE