Rajeev Gandhi House Construction ... vs State Of Kerala
2021 Latest Caselaw 1039 Ker

O.P.(TAX) No.5 of 2021          1

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                 THE HONOURABLE MR.JUSTICE S.V.BHATTI

                                    &

           THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

    TUESDAY, THE 12TH DAY OF JANUARY 2021 / 22TH POUSHA, 1942

                         OP (TAX).No.5 OF 2021

    AGAINST THE ORDER IN TA(VAT) 139/2020 DATED 27-08-2020 OF
               AGRL.I.T.ADDITIONAL BENCH,KOZHIKODE


PETITIONER:

               RAJEEV GANDHI HOUSE CONSTRUCTION CO-OPERATIVE
               SOCIETY LTD
               NO.C 1598, KOOTHUPARAMBA-670 643, REPRESENTED BY
               ITS SECRETARY, CHITHTRA.P., AGED 47 YEARS,
               D/O.REDGUNATHEN

               BY ADVS.
               SRI.KALEESWARAM RAJ
               SRI.VARUN C.VIJAY
               KUM.A.ARUNA
               SMT.MAITREYI SACHIDANANDA HEGDE

RESPONDENTS:

       1       STATE OF KERALA
               REPRESENTED BY ITS SECRETARY, DEPARTMENT OF TAX,
               SECRETARIAT, THIRUVANANTHAPURAM-695 001

       2       KERALA VALUE ADDED TAX/AGRICULTURAL INCOME TAX AND
               SALES TAX APPELLATE TRIBUNAL, REPRESENTED BY THE
               SECRETARY, ADDITIONAL BENCH, KOZHIKODE-673 001

       3       DEPUTY COMMISSIONER OF STATE TAX,
               STATE GOODS AND SERVICE TAX DEPARTMENT, SPECIAL
               CIRCLE, KANNUR-673 002

       4       JOINT COMMISSIONER (APPEALS) II
               STATE GOODS AND SERVICE TAX DEPARTMENT,
               KOZHIKODE-673 305

       5       ASSISTANT COMMISSIONER OF STATE TAX,
               SPECIAL CIRCLE, STATE GOODS AND SERVICE TAX
               DEPARTMENT, KANNUR-670 002
 O.P.(TAX) No.5 of 2021           2



       6       ASSISTANT DIRECTOR OF CO-OPERATIVE AUDIT,
               CO-OPERATIVE DEPARTMENT, KUTHUPARAMBA,
               KANNUR-670 643


OTHER PRESENT:

               GP SHAMSUDDIN K

     THIS OP TAX HAVING COME UP FOR ADMISSION ON 12.01.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                             JUDGMENT

Dated this the 12th day of January 2021

S.V.Bhatti, J.

The appellant in T.A.No.139/2020 before the VAT

Appellate Tribunal, Kozhikode is the petitioner.

The petitioner filed the said Tax Appeal

questioning the order dated 18.3.2020 of Joint

Commissioner (Appeals) II, SGST Department,

Kozhikode in VATA No.520/2018. The petitioner moved

stay petition, INTP No.198 of 2020, before the

Appellate Tribunal, Kozhikode. The Appellate

Tribunal through the order in Ext.P5 granted stay

of recovery of amount covered by the subject matter

of appeal subject to the petitioner depositing 30%

of the modified demand and also on furnishing

simple bond for the balance amount within one month

from 27.08.2020. The petitioner questions the

condition directing deposit of 30% of the amount

covered by the modified order. Hence the O.P.(Tax)

before this Court under Article 227 of the

Constitution of India.

2. Adv.Aruna.A. argues that the Tribunal is

very right in granting stay of recovery of amount

covered by the subject matter of appeal. However

imposition of 30% as condition precedent ignores

the singular facts stated by the petitioner. The

condition ought to be deleted in toto or if at

all one is required instead of 30% a reasonable

condition to prove the bona fides of the

petitioner could have been imposed by the

Appellate Tribunal.

3. Government Pleader Shamsuddin K. opposes

the prayer, firstly, by arguing that the

circumstances stated by the petitioner are in no

way relevant for stipulating the condition of 30%

deposit of modified order. If such conditions are

interdicted as a matter of course, then the

recovery of tax is adversely affected in all the

pending matters. He further submits that the

petitioner, it appears from record, has not

furnished security for the balance amount in terms

of the order in Ext.P5. Without prejudice and not

recorded as a concession made by him, he informs

the Court that the reasons stated by petitioner if

weighs with the Court, instalments could be granted

for depositing 30% of modified tax demand.

4. We have perused the record and noted the

submissions of the counsel appearing for the

parties. Prima facie, we are of the view that the

Tribunal has rightly exercised the discretion not

only by granting the stay but has put the

petitioner on reasonable condition. The petitioner

is a registered Society and we are informed by the

Advocate that presently does not have working

orders for execution. The petitioner has prima

facie case and merits before the Tribunal. In the

case on hand we would have certainly declined to

exercise our jurisdiction under Article 227 of the

Constitution for any purpose but for the fact that

the petitioner claims to suffered financial

difficulties for want of orders. We are satisfied

that the condition in Ext.P5 could be modified as

follows:

"The recovery proceedings are stayed till the

disposal of the appeal subject to the condition

the petitioner deposits 30% of the modified demand

in five equal instalments, the first instalment

becoming due and payable on or before 21 st of

February 2021. The petitioner furnishes simple

bond for the balance amount on or before 21 st

February 2021".

The petitioner commits default of one instalment,

the stay granted by Ext.P5 and modified by this order

would stand vacated.

The Writ Petition stands disposed of as indicated

above.

Sd/-

S.V.BHATTI

JUDGE

Sd/-

BECHU KURIAN THOMAS

JUDGE

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APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE PROCEEDINGS OF THE ASSISTANT COMMISSIONER OF STATE TAX DATED 26.02.2018

EXHIBIT P2 TRUE COPY OF THE PROCEEDINGS OF THE JOINT COMMISSIONER (APPEALS) II, STATE GOODS AND SERVICE TAX,DEPARTMENT, KOZHIKODE DATED 18.03.2020

EXHIBIT P3 TRUE COPY OF THE MEMORANDUM OF APPEAL TA (VAT) 139/2020 FILED BEFORE THE VAT APPELLATE TRIBUNAL, KOZHIKODE

EXHIBIT P4 TRUE COPY OF THE IN TP 198/2020 IN TA NO.139/2020

EXHIBIT P5 TRUE COPY OF THE INTERIM ORDER DATED 27.08.2020 IN TP O.198/2020 IN TA 9VAT) 139/2020

EXHIBIT P6 TRUE COPY OF THE SECURITY BOND SUBMITTED BY THE PETITIONER SOCIETY IN FORM 6 FOR THE YEAR 2014-2015

EXHIBIT P7 TRUE COPY OF THE PROCEEDINGS OF THE DEPUTY COMMISSIONER OF STATE TAX DATED 16.11.2020

EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED 17.11.2020 SUBMITTED BEFORE THE PRINCIPAL SECRETARY, DEPARTMENT OF FINANCE,

EXHIBIT P9 TRUE COPY OF THE RTI REPLY DATED 11.08.2020

EXHIBIT P10 TRUE COPY OF THE INTERIM ORDER DATED 3.06.2019 IN WPC 15191/2019

EXHIBIT P11 TRUE COPY OF THE INTERIM ORDER DATED 26.06.2019 IN WPC 15191/2019

EXHIBIT P12 TRUE COPY OF THE JUDGMENT DATED 13.04.2018 IN WRIT APPEAL NO.920/2018