M/S.Oceanus Dwellings Pvt. Ltd vs The State Tax Officer -1 (Wc)
2021 Latest Caselaw 3738 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                 THE HONOURABLE MR. JUSTICE A.M.BADAR

     TUESDAY, THE 02ND DAY OF FEBRUARY 2021 / 13TH MAGHA,1942

                       WP(C).No.2540 OF 2021(N)


PETITIONER:

               M/S.OCEANUS DWELLINGS PVT. LTD.
               PRIYADARSHINI NAGAR, PUTHUR, PALAKKAD, REPRESENTED BY
               K.A.FRANCIS, REGIONAL MANAGER.

               BY ADVS.
               SRI.HARISANKAR V. MENON
               SMT.MEERA V.MENON

RESPONDENTS:

      1        THE STATE TAX OFFICER -1 (WC)
               STATE GST DEPARTMENT, PALAKKAD - 678 001.

      2        THE KERALA VALUE ADDED TAX/AGRL. INCOME TAX AND SALES
               TAX APPELLATE TRIBUNAL
               ADDITIONAL BENCH, KOZHIKODE - 673 032.


OTHER PRESENT:

               SMT.THUSHARA JAMES, GOVT. PLEADER

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
02.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.2540/2021               2

                            JUDGMENT

Dated this the 2nd day of February 2021

Heard both sides.

2. The petitioner-company is challenging the interlocutory

order of stay in a statutory appeal filed by the petitioner. By the

said order at Ext.P6, while allowing the stay petition filed by the

petitioner in the appeal, the learned Tribunal was pleased to direct

the petitioner to deposit 30% of the modified demand and also to

furnish a simple bond for the balance amount within a period of

one month from the date of passing of the impugned order.

3. Learned counsel for the petitioner drew my attention to

paragraph 2 of the impugned order at Ext.P6 and argued that once

the learned Tribunal has found prima facie and arguable case in

favour of the appellant, it ought not to have directed the petitioner

to deposit 30% of the modified amount of demand.

4. I have considered the submissions so advanced and

perused the impugned order. Section 60 of the Kerala Value

Added Tax Act (KVAT Act, for short) provides for filing of

appeal to the Appellate Tribunal. The sub section 6 of Section 60

of the KVAT Act deals with interim arrangement during pendency

of appeal. It categorically provides that despite filing of appeal,

the appellant is required to pay tax in accordance with the order of

assessment against which appeal has been filed. However, the

Appellate Tribunal has discretion to give such directions as it

thinks fit regarding payment of tax before the disposal of the

appeal. It also empowers the Tribunal to direct furnishing of

sufficient security to the satisfaction of the Tribunal in such form

and in such manner as may be prescribed.

5. In the case of grant of stay, Section 60(6) of the KVAT Act

makes it mandatory that the appeal should be heard within

180 days from the date of such order and after expiry of such

period the stay so granted is deemed to be vacated. It is thus

clear that the Tribunal is vested with a discretion to deal with such

petition. In the case in hand, the learned Tribunal has directed the

petitioner to deposit 30% of the modified amount of demand. The

petitioner has placed reliance on the judgment of this Court in W.P.

(C) No.27395 of 2019 (V.Sainudheen vs. The Commercial Tax

Officer and other) decided on 15.10.2019. In that matter, this

Court has considered the financial hardship and set aside the

impugned order. However, in the case in hand, only 30% of the

amount of modified demand is directed to be deposited. The

discretion so exercised cannot be said to be an arbitrary

discretion.

In this view of the matter, no case for interference is made

out. This writ petition is therefore dismissed. The petitioner is

granted a time of one month to comply the directions contained in

the impugned order at Ext.P6.

Sd/-

A.M.BADAR

JUDGE

smp

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 COPY OF ORDER IS ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2014-15 DTD.16.10.17.

EXHIBIT P2 COPY OF ORDER IS ISSUED BY THE 1ST RESPONDENT DTD.06.12.2017.

EXHIBIT P3 COPY OF RECTIFIED ORDER IS ISSUED BY THE 1ST RESPONDENT DTD.06.06.2018.

EXHIBIT P4 COPY OF APPELLATE ORDER IS ISSUED BY THE DEPUTY COMMISSIONER (APPEALS), PALAKKAD DTD.25.01.2020.

EXHIBIT P5 COPY OF APPEAL IS MOVED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DTD.18.08.2020.

EXHIBIT P6 COPY OF ORDER IS ISSUED BY THE 2ND RESPONDENT DTD.07.12.2020.

EXHIBIT P7 COPY OF JUDGMENT BY THIS HON'BLE COURT IN WP(C) NO.27395/2019 DTD.15.10.2019. RESPONDENTS' EXHIBITS: NIL.

True Copy

P.S to Judge

smp