M/S.Desai Homes vs. The Asst. Commissioner (Wc), State Goods And Services Tax Department - Kerala High Court, 02 August 2019

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI FRIDAY, THE 02ND DAY OF AUGUST 2019 / 11TH SRAVANA, 1941 WP(C).No.20998 of 2019 PETITIONER: M/S.DESAI HOMES, DD TRADE TOWER, 2ND FLOOR, 36/2342 F1, KALOOR- KADAVANTHRA ROAD, KOCHI- 682017, REPRESENTED BY ITS PARTNER, SIDHARTH V.DESAI. BY ADVS. SRI.HARISANKAR V. MENON SMT.MEERA V.MENON RESPONDENTS: 1 THE ASST. COMMISSIONER (WC), STATE GOODS AND SERVICES TAX DEPARTMENT SGST COMPLEX, PERUMANOOR, ERNAKULAM- 682015. 2 THE DEPUTY COMMISSIONER (APPEALS), ERNAKULAM- 682015. GP. DR. THUSHARA JAMES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.20998 of 2019 -2-

JUDGMENT The petitioner filed appeal in Ext.P2 aggrieved by the orders of assessment in Ext.P1 made under Section 25(1) of the KVAT Act. The petitioner has filed the appeal with a delay condonation petition of 10 days in Ext.P3 and Ext.P4 stay petition. The petitioner prays for appropriate direction to the appellate authority to consider and dispose of Exts.P3 and P4 expeditiously.

The case of petitioner 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 of Exts.P3 and P4 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 orders on delay petition and stay petition are passed

WP(C).No.20998 of 2019 -3- expeditiously. Hence the writ petition.

Perused Exts.P1, P2, P3 and P4. Prima facie I am satisfied that a case is made out for issuing necessary directions to 2nd respondent to dispose of the delay condonation petition and stay petition in Exts.P3 and P4 respectively. 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/2nd respondent considers and disposes of Exts.P3 and P4 applications 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 JS

WP(C).No.20998 of 2019 -4- APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2011-12, DATED 23.03.2019. EXHIBIT P2 COPY OF APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR THE YEAR 2011-2012, DATED 07.05.2019. EXHIBIT P3 COPY OF DELAY PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR THE YEAR 2011-2012, DATED 07.05.2019. EXHIBIT P4 COPY OF STAY PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR THE YEAR 2011-2012, DATED 07.05.2019. EXHIBIT P5 COPY OF MODIFIED ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2011-2012, DATED 12.07.2019. RESPONDENTS'S/S EXHIBITS: NIL