Chakolas Kunnel Developers vs. The Deputy Commissioner (Appeals) - Kerala High Court, 19 September 2019

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI THURSDAY, THE 19TH DAY OF SEPTEMBER 2019 / 28TH BHADRA, 1941 WP(C).No.24716 OF 2019(L) PETITIONER/S: CHAKOLAS HABITAT PVT. LTD. PANDIT KARUPPAN ROAD, THEVARA, ERNAKULAM- 682013, REPRESENTED BY ITS MANAGING DIRECTOR, MR.MATHEW L.CHAKOLA. BY ADVS. SRI.A.KUMAR SRI.P.J.ANILKUMAR SMTG.MINI(1748) SRI.P.S.SREE PRASAD SRI.AJAY V.ANAND SRI. JOB ABRAHAM RESPONDENT/S: 1 THE DEPUTY COMMISSIONER (APPEALS), DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM- 682016. 2 THE STATE TAX OFFICER (WORKS CONTRACT), STATE GOODS AND SERVICE TAX DEPARTMENT, ERNAKULAM- 682016. 3 STATE ASSISTANT COMMISSIONER, STATE GOODS AND SERVICES TAX DEPARTMENT, ERNAKULAM AT CIVIL STATION, KAKKANAD, ERNAKULAM- 682030. OTHER PRESENT: GP. DR. THUSHARA JAMES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.09.2019, ALONG WITH WP(C).24728/2019(M), WP(C).24747/2019(P), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) Nos. 24716, 24728 & 24747/2019 -2- IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI THURSDAY, THE 19TH DAY OF SEPTEMBER 2019 / 28TH BHADRA, 1941 WP(C).No.24728 OF 2019(M) PETITIONER/S: M/S.CHAKOLAS HABITAT BAY SIDE PANDIT KARUPPAN ROAD, THEVARA, ERNAKULAM, REPRESENTED BY ITS MANAGING PARTNER, MR.MATHEW L CHAKOLA. BY ADVS. SRI.A.KUMAR SRI.P.J.ANILKUMAR SMTG.MINI(1748) SRI.P.S.SREE PRASAD SHRI.ABRAHAM JOB SRI.AJAY V.ANAND RESPONDENT/S: 1 THE DEPUTY COMMISSIONER (APPEALS), DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM-682016. 2 THE STATE TAX OFFICER (WORKS CONTRACT), STATE GOODS AND SERVICE TAX DEPARTMENT, ERNAKULAM- 682016. 3 STATE ASSISTANT COMMISSIONER, STATE GOODS AND SERVICES TAX DEPARTMENT, ERNAKULAM AT CIVIL STATION, KAKKANAD, ERNAKULAM-682030. OTHER PRESENT: GP. DR. THUSHARA JAMES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.09.2019, ALONG WITH WP(C).24716/2019(L), WP(C).24747/2019(P), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) Nos. 24716, 24728 & 24747/2019 -3- IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI THURSDAY, THE 19TH DAY OF SEPTEMBER 2019 / 28TH BHADRA, 1941 WP(C).No.24747 OF 2019(P) PETITIONER/S: CHAKOLAS KUNNEL DEVELOPERS PANDIT KARUPPAN ROAD, THEVARA, ERNAKULAM 682 013 REPRESENTED BY ITS MANAGING PARTNER MR. MATHEW L CHAKOLA BY ADVS. SRI.A.KUMAR SRI.P.J.ANILKUMAR SMTG.MINI(1748) SRI.P.S.SREE PRASAD SHRI.ABRAHAM JOB SRI.AJAY V.ANAND RESPONDENT/S: 1 THE DEPUTY COMMISSIONER (APPEALS), DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM 682 016 2 THE STATE TAX OFFICER (WORKS CONTRACT) STATE GOODS AND SERVICES TAX DEPARTMENT, ERNAKULAM 682 016 3 STATE ASSISTANT COMMISSIONER, STATE GOODS AND SERVICES TAX DEPARTMENT, ERNAKULAM AT CIVIL STATION, KAKKANAD, ERNAKULAM OTHER PRESENT: GP. DR. THUSHARA JAMES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.09.2019, ALONG WITH WP(C).24716/2019(L), WP(C).24728/2019(M), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) Nos. 24716, 24728 & 24747/2019 -4-

J U D G M E N T [ WP(C).24716/2019, WP(C).24728/2019, WP(C).24747/2019 ] Dated this the 19th day of September 2019 The petitioners in all three cases filed appeals in Ext.P2 aggrieved by the order of assessment in Ext.P1 made under Section 25(1) of the KVAT Act. The petitioner has filed the appeals with Ext.P3 stay petitions. The petitioner prays for appropriate direction to the appellate authority to consider and dispose of Ext.P3 expeditiously.

The case of petitioners is that either the mere filing of appeal or mere pendency of appeal does not amount to granting stay by the appellate authority. The delay in considering and disposing Ext.P3 results in the assessing officer taking steps for recovering the tax amount which is under challenge in Ext.P2. The assessing officer, if is successful in his effort the statutory appeal would become either academic or ineffective. It is further contended by the petitioner that in the manner the law provides for protecting the interest of appellant pending appeal, the order on stay petition is passed expeditiously. Hence the writ

W.P.(C) Nos. 24716, 24728 & 24747/2019 -5- petition.

Perused Exts. P1, P2 and P3. Prima facie I am satisfied that a case is made out for issuing necessary directions to first respondent to dispose of the stay petitions in Ext.P3. Having regard to the limited prayer and the grounds referred to above, this Court is satisfied that the writ petition can be disposed of by this order: (a) The appellate authority/first respondent considers and disposes of Ext.P3 stay applications in all the three writ petitions as early as possible, preferably within two months from the date of receipt of copy of this judgment. (b) The respondents are directed not to take coercive steps or recover the amounts determined in the orders under appeal for ten weeks from today. S.V.BHATTI JUDGE jjj

W.P.(C) Nos. 24716, 24728 & 24747/2019 -6- APPENDIX OF WP(C) 24716/2019 PETITIONER'S/S EXHIBITS: EXHIBIT P1OF THE ASSESSMENT ORDER DATED 15.03.2019. EXHIBIT P2OF THE MEMORANDUM OF APPEAL DATED 27.04.2019. EXHIBIT P3OF THE APPLICATION FOR STAY DATED 27.04.2019. EXHIBIT P4OF THE REVENUE RECOVERY NOTICE ISSUED BY THE 3RD RESPONDENT DATED 21.08.2019. W.P.(C) Nos. 24716, 24728 & 24747/2019 -7- APPENDIX OF WP(C) 24728/2019 PETITIONER'S/S EXHIBITS: EXHIBIT P1OF THE ASSESSMENT ORDER DATED 16.3.2019. EXHIBIT P2OF THE MEMORANDUM OF APPEAL FOR A.Y 2012-13 DATED 24.4.2019. EXHIBIT P3OF THE APPLICATION FOR STAY FOR A.Y 2012-13 DATED 24.4.2019. EXHIBIT P4OF THE REVENUE RECOVERY NOTICE ISSUED BY THE 3RD RESPONDENT DATED 21.8.2019. W.P.(C) Nos. 24716, 24728 & 24747/2019 -8- APPENDIX OF WP(C) 24747/2019 PETITIONER'S/S EXHIBITS: EXHIBIT P1OF THE ASSESSMENT ORDER DATED 19-03- 2019 EXHIBIT P2OF THE MEMORANDUM OF APPEAL DATED 27-04-2019 EXHIBIT P3OF THE APPLICATION FOR STAY DATED 27- 04-2019 EXHIBIT P4OF THE REVENUE RECOVERY NOTICE ISSUED BY THE 3RD RESPONDENT DATED 21-08-2019