Cochin Sanitary Stores vs. Deputy Commissioner(Appeals)-V - Kerala High Court, 11 July 2019

Heard together (7 matters)

WA.No.1589 of 2019

WP(C) 17265/2019

WA.1590/2019

WA.1594/2019

WA.1595/2019

WP(C) 17230/2019

WP(C) 17284/2019

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 C.K.ABDUL REHIM & THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI THURSDAY, THE 11TH DAY OF JULY 2019 / 20TH ASHADHA, 1941 WA.No.1589 of 2019 AGAINST THE ORDER/JUDGMENT IN WP(C) 17265/2019 of HIGHCOURT APPELLANT/PETITIONER: COCHIN SANITARY STORES T. D. ROAD, ERNAKULAM, KOCHI - 682 031. REPRESENTED BY PARTNER SHRI K. J. SUDHAKAA KAMMATH BY ADVS. SRI.K.V.VIMAL SRI.VIJAYAN. K.U. RESPONDENT/RESPONDENTS: 1 DEPUTY COMMISSIONER (APPEALS)-V SGST DEPARTMENT, THEVARA, KOCHI - 15 2 ASSISTANT COMMISSIONER SPECIAL CIRCLE, STATE GOODS AND SERVICES TAX DEPARTMENT, MATTANCHERRY AT ALUVA, PIN - 683 101 3 ASSISTANT COMMISSIONER OF STATE TAX SGST DEPARTMENT, MATTANCHERRY, KOCHI - 682 002 4 SECRETARY TO GOVERNMENT SGST DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001 SRI. SHAMSUDHEEN V K., GOVERNMENT PLEADER THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 11.07.2019, ALONG WITH WA.1590/2019, WA.1594/2019, WA.1595/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A. Nos.1589/2019, 1590/19, 1594/2019 & 1595/2019 2 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI THURSDAY, THE 11TH DAY OF JULY 2019 / 20TH ASHADHA, 1941 WA.No.1590 of 2019 APPELLANT/PETITIONER: COCHIN SANITARY STORES T.D.ROAD, ERNAKULAM, KOCHI-682031 REPRESENTED BY PARTNER SRI.K.J.SUDHAKARA KAMMATH BY ADVS. SRI.VIJAYAN. K.U. SRI.K.V.VIMAL RESPONDENTS/RESPONDENTS: 1 DEPUTY COMMISSIONER(APPEALS)-V SGST DEPARTMENT, THEVARA, KOCHI-15 2 ASSISTANT COMMISSIONER, SPECIAL CIRCLE, STATE GOODS AND SERVICE TAX DEPARTMENT MATTANCHERRY AT ALUVA, PIN-683101 3 ASSISTANT COMMISSIONER OF STATE TAX, SGST DEPARTMENT, MATTANCHERY, KOCHI-682 002 4 SECRETARY TO GOVERNMENT SGST DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001 SRI. SHAMSUDHEEN V.K, GOVERNMENT PLEADER THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 11.07.2019, ALONG WITH WA.1595/2019, WA.1594/2019, WA.1589/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A. Nos.1589/2019, 1590/19, 1594/2019 & 1595/2019 3 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI THURSDAY, THE 11TH DAY OF JULY 2019 / 20TH ASHADHA, 1941 WA.No.1594 of 2019 AGAINST THE ORDER/JUDGMENT IN WP(C) 17230/2019 of HIGHCOURT APPELLANT/PETITIONER: COCHIN SANITARY STORES T.D ROAD, ERNAKULAM, KOCHI-682 031, REPRESENTED BY PARTNER, SRI. K.J.SUDHAKARA KAMATH BY ADVS. SRI.K.V.VIMAL SRI.VIJAYAN. K.U. RESPONDENTS/RESPONDENTS: 1 DEPUTY COMMISSIONER(APPEALS)-V SGST DEPARTMENT, THEVARA, KOCHI-15 2 ASSISTANT COMMISSIONER, SPECIAL CIRCLE, STATE GOODS AND SERVICES TAX DEPARTMENT, MATTANCHERRY AT ALUVA, PIN-683 101 3 ASSISTANT COMMISSIONER OF STATE TAX, SGST DEPARTMENT, MATTACHERRY, KOCHI-682 002. 4 SECRETARY TO GOVERNMENT, SGST DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. SRI. V.K. SHAMSUDHEEN, GOVERNMENT PLEADER THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 11.07.2019, ALONG WITH WA.1595/2019, WA.1590/2019, WA.1589/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A. Nos.1589/2019, 1590/19, 1594/2019 & 1595/2019 4 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI THURSDAY, THE 11TH DAY OF JULY 2019 / 20TH ASHADHA, 1941 WA.No.1595 of 2019 AGAINST THE ORDER/JUDGMENT IN WP(C) 17284/2019 of HIGHCOURT APPELLANT/PETITIONER: COCHIN SANITARY STORES T.D.ROAD,ERNAKULAM,KOCHI-682031, REPRESENTED BY PARTNER SRK.K.J.SUDHAKARA KAMMATH. BY ADVS. SRI.K.V.VIMAL SRI.VIJAYAN. K.U. RESPONDENTS/RESPONDENTS: 1 DEPUTY COMMISSIONER(APPEALS)-V SGST DEPARTMENT,THEVARA,KOCHI-15. 2 ASSISTANT COMMISSIONER, SPECIAL CIRCLE,STAT GOODS AND SERVICES TAX DEPARTMENT,MATTANCHERRY AT ALUVA,PIN-683101. 3 ASSISTANT COMMISSIONER OF STATE TAX, SGST DEPARTMENT,MATTANCHERRY, KOCHI-682002. 4 SECRETARY TO GOVERNMENT, SGST DEPARTMENT,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. SRI. SHAMSUDHEEN V.K., GOVERNMENT PLEADER THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 11.07.2019, ALONG WITH WA.1594/2019, WA.1590/2019, WA.1589/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A. Nos.1589/2019, 1590/19, 1594/2019 & 1595/2019 5 C.K.ABDUL REHIM, J. & R. NARAYANA PISHARADI, J. ----------------------------------- W.A.No.1589/2019, W.A.No.1590/2019, W.A.No.1594/2019 & W.A. No.1595/2019 -------------------------------------- DATED THIS THE 11th DAY OF JULY, 2019.

COMMON JUDGMENT C.K.ABDUL REHIM, J. The appellant had challenged Ext.P3 interim stay orders produced in all the above cases, passed by the 1st respondent in the statutory appeals filed challenging the assessments finalised against the appellant with respect to various years, before the Single Judge, in the writ petitions.

The main contentions raised were that, the appellant was not actually heard on 06.06.2019, as stated in the impugned orders. It is further contended that the Appellate Authority had failed to apply his mind to the merits of the appeals and that the condition for payment of 20% of the demands was insisted quite mechanically. It is also contended that the Department had already recovered 1594/2019 & 1595/2019 6 more than 20% of the tax amount due, after finalisation of the assessments.

The learned Single Judge had dismissed the Writ petitions based on an observation that it is evident from the impugned orders itself that the appellant was heard on 06.06.2019. Further it was held that, there exists no scope for interference with the condition imposed for payment of 20% of the amount in dispute. However, the learned Single Judge permitted payment of the amounts stipulated in the impugned order in three equal monthly installments, starting from 04.07.2019. On that basis, it was directed to defer all the coercive steps of recovery.

Learned counsel for the appellant reiterated the contention that there was no hearing conducted before the Appellate authority on 06.06.2019. The learned Government pleader appearing for the respondents, on instructions submitted that, hearing on 06.06.2019 was not on the basis of any posting of the appeals or stay petitions, on that day. But it is stated that, one of the partners of the appellant firm and their authorised representative were present before the appellant authority on that day and they 1594/2019 & 1595/2019 7 were heard in person.

We find merit in the contention raised by the learned counsel for the appellant that the condition was stipulated in a mechanical manner. The impugned order does not reflect any reasons for imposition of the condition. Nor it reflects any advertence to the contentions raised in the appeal. At any rate, we do not find that the insistence for payment of 20% of the demand, is in any manner unreasonable or arbitrary, especially in view of Section 55(4) of the Kerala Value Added Tax Act, 2003. But, it is only just and proper in the interest of justice that payments or recovery if any already effected out of the disputed liability, need to be given credit while fixing such condition. Therefore, we are inclined to remit the matters to the Appellate Authority for passing of fresh interim orders on taking note of the contention with respect to realisation of a part of the liability.

Under the above mentioned circumstances, the above Writ Appeals are hereby allowed to the extent of modifying the judgments impugned in all these Writ Appeals. Ext.P3 orders in these cases are remitted back to the Appellate 1594/2019 & 1595/2019 8 Authority, for a reconsideration of the interim applications for stay. Fresh orders shall be passed taking into consideration of amounts if any, realised out of the disputed liability, for which credit shall be given. The Appellate Authority shall either pass fresh orders in the interim petitions or shall dispose of the appeals itself, at the earliest, at any rate within three weeks from the date of production of a copy of this judgment. Till compliance of the above direction in either way, coercive steps of recovery if any initiated shall be kept in abeyance.

The Writ Appeals are disposed of subject to the directions above. C.K.ABDUL REHIM JUDGE R. NARAYANA PISHARADI ajt JUDGE 1594/2019 & 1595/2019 9 APPENDIX OF WA 1589/2019 PETITIONER'S/S EXHIBITS: ANNEXURE AOF THE COVERING LETTERS TO THE APPEALS FILED ON 02.05.2019 ANNEXURE BOF THE INTIMATION AND STATEMENT ISSUED BY THE KOTAK MAHINDRA BANK LTD., M. G. ROAD, ERNAKULAM TO THE WRIT APPELLANT ANNEXURE COF THE INTIMATION AND STATEMENT ISSUED BY THE STATE BANK OF INDIA, M. G. ROAD, ERNAKULAM TO THE WRIT APPELLANT ANNEXURE DOF THE REQUEST TO THE DEPUTY COMMISSIONER (APPEALS) DATED 19.06.2019 REQUESTING URGENT DISPOSAL OF APPEAL FOR THE YEAR 2015-16 1594/2019 & 1595/2019 10 APPENDIX OF WA 1590/2019 PETITIONER'S/S EXHIBITS: ANNEXURE AOF THE COVERING LETTERS TO THE APPEALS FILED ON 2/5/2019 ANNEXURE BOF THE INTIMATION AND STATEMENT ISSUED BY THE KOTAK MAHINDRA BANK LTD, M.G.ROD, ERNAKULAM TO THE WRIT APPELLATE ANNEXURE COF THE INTIMATION AND STATEMENT ISSUED BY THE STATE BANK OF INDIA M.G.ROAD, ERNAKULAM TO THE WRIT APPELLANT ANNEXURE DOF THE REQUEST TO THE DEPUTY COMMISSIONER(APPEALS) DATED 19/06/2019 REQUESTING URGENT DISPOSAL OF APPEAL FOR THE YEAR 2015-16 1594/2019 & 1595/2019 11 APPENDIX OF WA 1594/2019 PETITIONER'S/S EXHIBITS: ANNEXURE AOF THE COVERING LETTERS TO THE APPEALS FILED ON 2.5.2019 ANNEXURE BOF THE INTIMATION AND STATEMENT ISSUED BY THE KOTAK MAHINDRA BANK LTD, MG. ROAD ERNAKULAM TO THE WRIT APPELLANT ANNEXURE COF THE INTIMATION AND STATEMENT ISSUED BY THE STATE BANK OF INDIA, M.G ROAD, ERNAKULAM TO THE WRIT APPELLANT ANNEXURE DOF THE REQUEST TO THE DEPUTY COMMISSIONER (APPEALS) DATED 19.6.2019 REQUESTING URGENT DISPOSAL OF APPEAL FOR THE YEAR 2015-16 1594/2019 & 1595/2019 12 APPENDIX OF WA 1595/2019 PETITIONER'S/S EXHIBITS: ANNEXURE AOF THE COVERING LETTERS TO THE APPEALS FILED ON 2/5/2019 ANNEXURE BOF THE INTIMATION AND STATEMENT ISSUED BY THE KOTAK MAHINDRA BANK LTD,M.G.ROAD ERNAKULAM TO THE WRIT APPELLANT ANNEXURE COF THEINTIMATION AND STATEMENT ISSUED BY THE STATE BANK OF INDIA,M.G.ROAD,ERNAKULAM TO THE WRIT APPELLANT. ANNEXURE DOF THE REQUEST TO THE DEPUTY COMMISSIONER(APPEALS) DATED 19/6/2019 REQUESTING URGENT DISPOSAL OF APPEAL FOR THE YEAR 2015-16.