Berger Paints INDIA Limited vs. Assistant Commissioner - Kerala High Court, 24 September 2018

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU MONDAY ,THE 24TH DAY OF SEPTEMBER 2018 / 2ND ASWINA, 1940 WP(C).No. 31030 of 2018 PETITIONER/S: BERGER PAINTS INDIA LIMITED DOOR NO.III/835C, IST FLOOR, VALIYARA CHAMBERS, K K ROAD, CHEMBUMUKKU, COCHIN-682021, REPRESENTED BY ITS ADMINISTRATION EXECUTIVE, SRI. BENNY SEBASTIAN. BY ADV. SRI.TOMSON T.EMMANUEL RESPONDENT/S: 1 ASSISTANT COMMISSIONER, COMMERCIAL TAXES, SPECIAL CIRCLE, MATTANCHERRY, AT ALUVA-683101 2 DEPUTY COMMISSIONER(APPEALS), COMMERCIAL TAXES, THEVARA, COCHIN-682015. 3 KERALA VALUE ADDED TAX APPELLATE TRIBUNAL, SALES TAX COMPLEX, THEVARA, COCHIN-682015, REPRESENTED BY ITS SECRETARY. 4 INSPECTING ASSISTANT COMMISSIONER, STATE GOODS AND SERVICES TAX DEPARTMENT, MATTANCHERY-682002. OTHER PRESENT: GP. DR. THUSHARA JAMES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC No.31030 OF 2018 2

JUDGMENT The petitioner, a dealer under the KVAT Act, has a dispute about the assessment for the year 2011-2012. After unsuccessful first appeal, it has filed Ext.P2 second appeal. In that, the Tribunal passed Ext.P6 conditional stay order thus : '' In the result, petition is allowed and the oepration of the impugned order is stayed on deposit of 30% of the demand and on executing simple bond for the balance amount before the assessing authority within one month. It is made clear that the amount if any remitted by the petitioner towards the disputed tax shall be given credit to ''.

Assailing the Ext.P6, the petitioner has filed this writ petition.

The petitioner's counsel contends that the Tribunal driected the petitioner to deposit 30% of the entire demand, including interest; instead of 30% of the disputed tax. He has also submitted that the Tribunal's usual practice is to impose 20%; but, in this case, it is 30%.

The Government Pleader, however, has submitted that the Tribunal has directed the petitioner to deposit 30% of the disputed tax— not the entire demand.

I reckon that it will suffice if the petitioner pays 30% of the WPC No.31030 OF 2018 3 disputed tax, as a pre-condition under Ext.P6. Then the Tribunal will consider the appeal on merits. At any rate, as the time given under Ext.P6 ended by 23rd September 2018; in the interest of justice, I hold that the petitioner must pay the pre-deposit as directed by the Tribunal on or before 15th October 2018. DAMA SESHADRI NAIDU JUDGE APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1OF ORDER DATED 14.12.2016 COMPLETED BY THE 1ST RESPONDENT FOR THE YEAR 2011-12, U/S.25(1) OF THE KVAT ACT. EXHIBIT P2OF APPEAL IN FORM NO.29 DATED 5.1.2017 SUBMITTED BY PETITIONER AGAINST EXT.P1 ORDER BEFORE 2ND RESPONDENT. EXHIBIT P3OF 1ST APPELLATE ORDER DATED 30.12.2017 PASSED BY 2ND RESPONDENT IN EXT. P2 APPEAL WITHOUT PROPER REASONING. EXHIBIT P4OF 2ND APPEAL DATED 7.4.2018 SUBMITTED BEFORE 3RD RESPONDENT AGAINST EXT.P3 1ST APPELLATE ORDER. EXHIBIT P5OF STAY PETITION DATED 7.4.2018 SUBMITTED BY THE PETITIONER ALONG WITH EXT.P4 2ND APPEAL, BEFORE 3RD RESPONDENT. EXHIBIT P6OF CONDITIONAL STAY ORDER DATED 23.7.2018 COMMUNICATED TO THE PETITIONER ON 23.8.2018 IN EXT.P5 STAY PETITION, WHEREIN HEAVY CONDITION IMPOSED. EXHIBIT P7OF JUDGMENT DATED 10.11.2014 PASSED BY THIS HON'BLE COURT IN WPC.NO.28823 OF 2014 ON SIMILAR SET OF FACTS.