J.M.Projects vs. Intelligence Officer (Ib) - Kerala High Court, 20 September 2019

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI FRIDAY, THE 20TH DAY OF SEPTEMBER 2019 / 29TH BHADRA, 1941 OP (TAX).No.14 OF 2019 AGAINST THE ORDER DATED 08-04-2019 IN INTP 1276/2018 IN TA (VAT) 1100/2018 OF KERALA VAT APPELLATE TRIBUNAL, ERNAKULAM. PETITIONER: J.M.PROJECTS, PALACHUVADU, KAKKANAD, KOCHI-682 030, ERNAKULAM DISTRICT (REPRESENTED BY SRI.JOY JOSEPH, THULUVATH, PROPRIETOR). BY ADVS. SRI.K.N.SREEKUMARAN SRI.P.J.ANILKUMAR (A-1768) SRI.N.SANTHOSHKUMAR RESPONDENTS: 1 INTELLIGENCE OFFICER (IB) OFFICE OF DEPUTY COMMISSIONER (INTELLIGENCE), EDAPPALLY, ERNAKULAM, KOCHI-682 024. 2 ASSISTANT COMMISSIONER, WORKS CONTRACT, STATE GOODS AND SERVICES TAX DEPARTMENT, CLAS TOWERS, OLD RAILWAY STATION ROAD, ERNAKULAM, KOCHI-682 018. 3 DEPUTY COMMISSIONER (APPEALS), STATE GOODS AND SERVICES TAX DEPARTMENT, PERUMANOOR, ERNAKULAM., KOCHI-682 015. 4 KVAT TRIBUNAL, TAX TOWERS, PERUMANOOR, ERNAKULAM, KOCHI-682 015 (REPRESENTED BY ITS SECRETARY). OTHER PRESENT: SR.GP-SRI. MOHAMMED RAFIQ THIS OP TAX HAVING COME UP FOR ADMISSION ON 20.09.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: O.P (Taxes) No. 14/2019 -2- C.K. ABDUL REHIM, J. & R. NARAYANA PISHARADI, J. ------------------------------------------------- O.P. (Taxes) No. 14 OF 2019 ------------------------------------------------- DATED THIS THE 20th DAY OF SEPTEMBER, 2019

J U D G M E N T Abdul Rehim, J: Challenge in this original petition is against an interim order passed by the Kerala Value Added Tax Appellate Tribunal, in INTP No.1276/2018 in T.A. (VAT) No.1100/2018. The appeal before the said Tribunal was filed against an order passed by the First Appellate Authority confirming the assessment completed against the petitioner. Contention of the petitioner is that the proceedings for assessment was initiated based on an order issued imposing penalty on the petitioner, which ultimately was quashed by the Appellate Authority. While considering the interim application seeking stay of recovery, the Tribunal had gone into the above said contention. But it was observed that, on going through the records it is evident that the order of the first Appellate Authority is based on the fact that, there was difference in the conceded annual detected in the audited statement. Relying upon a decision of this court reported in (2017) 25 KTR 279 (Ker.) it was observed that, in case of of a -3- dealder engaged in works contract, who was permitted to pay tax at the compounded rate, the tax is leviable based on the entire contract amount received. The Tribunal observed that, the first Appellate Authority had considered all the points in detail.

Hence it was found that it is not a case in which the petitioner deserves an absolute stay. Therefore the interim stay was granted only subject to condition of payment of 30% of the demand amount and on executing bond for the balance amount.

Contention of the learned counsel appearing for the petitioner is that, even the first Appellate Authority was convinced that there is no difference in the turnover detected through the audit and the observations contained in the impugned order that the first Appellate Authority was convinced about the difference in the turnover, is factually incorrect.

We are of the considered opinion that the above said contention is a matter which need to be adjudicated at the time of hearing of the Appeal by the Tribunal. As of now, we do not find any illegality or impropriety in the interim order passed, which according to us is a speaking order passed with proper application of mind, in the exercise of the discretion vested on the Tribunal. Hence there is no scope for interference by this court.

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Having confronted with the situation mentioned as above, learned counsel for the petitioner sought for indulgence of this court in reducing the condition imposed, based on the plea that it will be onerous on the part of the petitioner to comply with the condition insisted because of the extreme financial crunch faced by him at present. We are persuaded to take a lenient view in the matter and to grant some reduction with respect to the quantum of the amount insisted as pre- condition for granting the interim stay.

Hence, while declining interference with Ext.P6 order, this court allows a modification in the said order to the extent of reducing the condition imposed therein from 30% to 20%. The time stipulated for complying with the condition will also stand extended for a period of one month from today. The original petition is disposed of as above. C.K.ABDUL REHIM JUDGE R. NARAYANA PISHARADI JUDGE AMG -5- APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1OF THE PENALTY ORDER NO.IBE-V/OR-05/2012- 13 DATED 21.12.2012 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P2OF THE ASSESSMENT ORDER NO.32072006283/2009-10 DATED 30.04.2014 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P3OF THE ORDER DATED 27.02.2015 IN RP 178/2014 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P4OF THE ORDER DATED 03.09.2018 IN KVATA 2242/2014 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P5OF THE APPEAL IN FORM 31 FILED BEFORE THE 4TH RESPONDENT ON 11.12.2018. EXHIBIT P5 AOF THE STAY PETITION FILED IN EXT.P5 APPEAL BEFORE THE 4TH RESPONDENT ON 11.12.2018. EXHIBIT P6OF THE STAY ORDER DATED 08.04.2019 IN INTP NO.1276/2018 IN TA (VAT) 1100/2018 ISSUED BY THE 4TH RESPONDENT. RESPONDENTS' EXHIBITS NIL AMG