K.Raghunathan vs Deputy Commissioner
2021 Latest Caselaw 6011 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                  THE HONOURABLE MR. JUSTICE A.M.BADAR

     FRIDAY, THE 19TH DAY OF FEBRUARY 2021 / 30TH MAGHA,1942

                        WP(C).No.4372 OF 2021(V)


PETITIONER/S:

                K.RAGHUNATHAN,
                PROPRIETOR, M/S. K.R. INN, DOOR NO. 7/274E,
                PERUMPILAVU, KARIKKAD P.O.
                THRISSUR DISTRICT 680 519.

                BY ADV. SRI.TOMSON T.EMMANUEL

RESPONDENT/S:

      1         DEPUTY COMMISSIONER,
                FORMERLY, ASSISTANT COMMISSIONER, STATE GOODS AND
                SERVICES TAX DEPARTMENT, SPECIAL CIRCLE, PUTHOLE,
                THRISSUR 680 004.

      2         INTELLIGENCE OFFICER,
                SQUAD NO. IV, STE GOODS AND SERVICES TAX COMPLEX,
                PUTHOLE, THRISSUR 680 004.

      3         DEPUTY COMMISSIONER (APPEALS),
                STATE GOODS AND SERVICES TAX COMPLEX, POOTHOL,
                THRISSUR 680 004.

      4         THE KERALA VALUE ADDED TAX APPELLAE TRIBUNAL,
                THEVARA, ERNAKULAM, COCHIN 682 015.

      5         DEPUTY COMMISSIONER,
                STATE GOODS AND SERVICES TAX COMPLEX, POOTHOL,
                THRISSUR 680 004.




                GP- SMT. THUSHARA JAMES

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
19.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.4372 OF 2021

                                     2




                               JUDGMENT

Dated this the 19th day of February 2021

Heard learned Counsel appearing for the

petitioner. Learned Counsel for the petitioner drew

my attention to the 1st appellate order as well as the

order on the stay petition at Ext.P7, passed by the

2nd appellate authority, and argued that the appellate

authority has disposed of the stay petition filed by

the petitioner by holding that the petitioner has a

prima facie case, but at the same time, directing the

petitioner to pay 30% of the existing demand and by

adding further direction to execute a bond for the

balance amount before the assessing authority.

Learned Counsel for the petitioner placed reliance on

judgment of this Court in the matter of Archana

Agencies Vs. Commercial Tax Officer 2014(2) KLT 715,

wherein, this Court has held that the stay order must

be a recent order. With this, learned Counsel for

the petitioner submits that the impugned order WP(C).No.4372 OF 2021

granting conditional stay needs to be quashed and set

aside. In the alternative, learned Counsel for the

petitioner further argued that the appeal be directed

to be heard expeditiously.

2. Learned Government Pleader appears for the

respondents.

3.I have considered the submissions so advanced

and perused the material placed before me.

4. The petitioner who is an assessee engaged in

sale of cooked food, soft drinks and Indian Made

Foreign Liquor, submitted the return for the

assessment year 2013-14 under section 17(3) of the

KGST Act, 1963. The assessing authority completed

the assessment, and feeling aggrieved by the said

assessment, the petitioner had preferred an appeal

before the 1st appellate authority, i.e., the Deputy

Commissioner (Appeals). By this order, the 1st

appellate authority had modified the assessment by

directing that the tax paid by the petitioner before

the Intelligence Wing should be given due credit.

However, rest of the prayers made by the petitioner WP(C).No.4372 OF 2021

were rejected and that is how the petitioner

preferred an appeal before the Kerala Agricultural

Income Tax and Sales Tax Appellate Tribunal. The

appeal was accompanied by the said petition and the

learned Tribunal decided that the said petition by

the impugned order at Ext.P7, which according to the

learned Counsel for the petitioner is bereft of any

reason and as such, is not sustainable.

5. In the matter of Archana Agencies, this Court

has held that, in taxation matters, reasons must

support not only the decision to waive payment of

amounts due but also the decision that directs an

assessee to make some payment pending consideration

of the appeal. If the conditional order granting stay

is bereft of reasons then the such orders cannot be

sustained. However, at the same time, this Court has

clarified that the requirement of giving reason also

includes minimal reason for granting stay. In this

context, it is relevant to quote paragraph No.5 of

the impugned order granting conditional stay.

"5. On going through the appeal, we find WP(C).No.4372 OF 2021

that stay is to be granted till the disposal of the appeal. In view of the concurrent findings of the authorities below and the merits of the contentions raised by the petitioner and the fact that no legal issue is involved in this appeal, stay can be granted only on payment of 30% of the existing demand and on executing bond for the balance amount before the assessing authority."

6. Perusal of paragraph 5 makes it clear that the

learned appellate Tribunal has held that no question

of law is involved in the appeal. Learned Tribunal

was aware of the fact that there is concurrent

findings by atleast two authorities. In this

backdrop, learned Tribunal observes that the stay can

be granted only on payment of 30% of the existing

demand. This in my considered opinion, constitute

sufficient reasons for imposing condition for

directing the petitioner to pay 30% of the existing

demand. In this view of the matter, it is not

possible to interfere in the impugned order which is

an interim order passed in an appeal. WP(C).No.4372 OF 2021

The petition therefore fails and the same is

dismissed. Petitioner is at liberty to seek

instalments if any and for expeditious hearing of the

appeal, before the learned appellate Tribunal.

Sd/-

A.M.BADAR

JUDGE

uu

19.2.2021 WP(C).No.4372 OF 2021

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF ORDER DATED 02.05.2018 COMPLETED BY 1ST RESPONDENT, FOR THE YEAR 2013-14 IN ESTIMATING 66% GROSS PROFIT TO ESTIMATE SALES TURNOVER OF IMFL.

EXHIBIT P2 TRUE COPY OF APPEAL SUBMITTED AGAINST EXT P1 ORDER BEFORE 3RD RESPONDENT.

EXHIBIT P3 TRUE COPY OF APPELLATE ORDER PASSED BY 3RD RESPONDENT IN EXT P2 APPEAL.

EXHIBIT P4 TRUE COPY OF FORM NO. 32 2ND APPEAL DATED 06.10.2002 SUBMITTED BY PETITIONER BEFORE 4TH RESPONDENT CHALLENING EXT. P3 1ST APPELLATE ORDER.

EXHIBIT P5 TRUE COPY OF AFFIDAVIT AND PETITION FOR STAY DATED 06.10.2020 SUBMITTED BY PETITIONER ALONG WITH EXT. P4 APPEAL, BEFORE TH RESPONDENT.

EXHIBIT P6 TRUE COPY OF MODIFIED ASSESSMENT ORDER PASSED BY 1ST RESPONDENT PURSUANT TO EXT P3 1ST APPELLATE ORDER.

EXHIBIT P7 TRUE COPY OF MECHANICAL CONDITIONAL STAY ORDER DATED 04.02.2021, COMMUNICATED TO PETITIONER ON 13.02.2021 BY 3RD RESPONDENT IN EXT. P5 STAY PETITION.

EXHIBIT P8 TRUE COPY OF JUDGMENT OF THIS HONBLE COURT IN ARCHANA AGENCIES V/S. COMMERCIAL TAX OFFICER REPORTED IN 2014 (2) KLT 715).

EXHIBIT P9 TRUE COPY OF JUDGMENT DATED 20.10.2002 IN ST REV. NO. 13 OF 2020 PASSED BY DIVISION BENCH OF THIS HONBLE COURT.