IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE S.V.BHATTI
&
THE HONOURABLE MR.JUSTICE BASANT BALAJI
WEDNESDAY, THE 27TH DAY OF JULY 2022 / 5TH SRAVANA, 1944
OP (TAX) NO. 28 OF 2022
(Int.P 25/2022 in TA(VAT) 31/22 of KVAT Tribunal,
Kozhikode)
PETITIONER/S:
M/S. SDF INDUSTRIES LTD
AGED 58 YEARS
CHANDRA NAGAR, PALAKKAD, REPRESENTED BY SUNNY
MATHEW, SENIOR LAISON EXECUTIVE, PIN - 67800
BY ADVS.
HARISANKAR V. MENON
MEERA V.MENON
R.SREEJITH
K.KRISHNA
RESPONDENT/S:
1 THE DEPUTY COMMISSIONER OF STATE TAXES
STATE GST DEPARTMENT, PALAKKAD, PIN - 678001
2 THE KERALA VALUE ADDED TAX APPELLATE TRIBUNAL
CHEROOTTY ROAD, KOZHIKODE 673 032, REPRESENTED BY
ITS ASST. SECRETARY, PIN - 673032
OTHER PRESENT:
SR GP V K. SHAMSUDHEEN
THIS OP TAX HAVING COME UP FOR ADMISSION ON 27.07.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP (TAX) NO. 28 OF 2022
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S.V.BHATTI
& BASANT BALAJI, JJ.
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OP (TAX) NO. 28 OF 2022
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JUDGMENT
(Dated this the 27th day of July 2022) Basant Balaji J., On 24.6.2022 this Court ordered notice. Adv.V.K.Shamsudheen accepted notice and sought time to get instructions in the matter. Today, we have heard Adv.Harishankar V. Menon and Adv.V.K.Shamsudheen, the learned Government Pleader, for the parties.
2. The O.P.(Tax) case is filed questioning the conditional order of stay granted by the Tribunal in Interlocutory Petitions in respective Appeal for appreciating the alleged onerous condition imposed by the Tribunal. The following portion OP (TAX) NO. 28 OF 2022 -3- from the impugned order is extracted below : "(a) This petition stands allowed.
(b) The recovery proceedings are stayed till the disposal of the Appeal or for six months, whichever happens earlier on the petitioner depositing 20% of the disputed amount of tax and on furnishing simple bond for the balance amount within one month from the date of receipt of copy of this order.
(c) The appeal will be notified for hearing on priority basis."
3. Adv.Harisankar placed strong reliance on the order in Ext.P5 in O.P.Rev.136/2016 to contend that this Court, after taking note of all the attendant circumstances in a matter similar to the present, held that the value of de- mineralised water has to be taken as 30 ps. per litre. Applying the said adjudication as in the nature of declaration, the condition to deposit 20% of the disputed amount of tax is onerous and seeks the indulgence of the OP (TAX) NO. 28 OF 2022 -4- Court to grant firstly, unconditional stay and secondly, put the petitioner to a reasonable condition for availing the benefit of stay during the pendency of the appeal.
4. Adv.Shamsudheen opposes the modification of condition imposed by the Tribunal. Firstly, it is argued that the order in Ext.P5 may not be taken as conclusive in all cases and circumstances. The substantial issue is canvassed before the Tribunal. By taking note of the controversy of adjudication before the Tribunal, the Tribunal rightly ordered deposit of 20% of the disputed amount of tax. It is argued without prejudice to the first argument that, the petitioner is not entitled for unconditional stay of recovery of disputed tax during the pendency of the appeal.
5. We have perused the records and taken note of the OP (TAX) NO. 28 OF 2022 -5- respective contentions put forward by the counsel. OP(Tax) cases are filed questioning the conditional interim order of stay. In our jurisdiction under Article 227 of the Constitution of India, we are not expected to interfere or interdict the orders of the Tribunal unless manifest injustice is pointed out and the discretion is not exercised commensurate to the controversy pending before the Tribunal. In our considered view, the Tribunal has rightly held that the petitioner ought to be put to condition for availing the stay of recovery of demanded tax. However, the condition directing deposit of 20% of the disputed amount of tax at this stage and in the circumstances of the case, appears to be harsh and onerous. Hence, we modify the order as "depositing 15 paise per litre on the total quantity of de- mineralised water and furnishing simple bond from the balance amount within four weeks from today". The order shall not be understood as this Court OP (TAX) NO. 28 OF 2022 -6- expressed a view on the merits of the matter.
Original Petition is disposed of as above.
Sd/- S.V.BHATTI,JUDGE Sd/- BASANT BALAJI, JUDGE dl/ OP (TAX) NO. 28 OF 2022 -7- APPENDIX OF OP (TAX) 28/2022 PETITIONER EXHIBITS Exhibit P1 COPY OF ASSESSMENT ORDER FOR THE YEAR 2016-17 DTD. 30-11-2018 Exhibit P2 COPY OF APPELLATE ORDER ISSUED BY THE DY. COMMISSIONER (APPEALS), PALAKKAD DTD. 22-11-2019 Exhibit P3 COPY OF APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DTD. 23-02- 2022 Exhibit P4 COPY OF STAY PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DTD. 23-02-2022 Exhibit5 COPY OF ORDER IN O.T.REV NO. 136/2016 OF THIS HON'BLE COURT DTD. 27-09-2019 Exhibit P6 COPY OF APPELLATE ORDER ISSUED BY THE 2ND RESPONDENT DTD. 28-03-2022