M/S Western Soaps vs State Of Kerala
2021 Latest Caselaw 893 Ker

O.P.(Tax) No.4 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

      MONDAY, THE 11TH DAY OF JANUARY 2021 / 21TH POUSHA, 1942

                           OP (TAX).No.4 OF 2021

    AGAINST THE ORDER IN INTP Nos.233 & 234 of 2020 IN TAVAT
175/2020 DATED 28-10-2020 OF AGRL.I.T.ADDITIONAL BENCH,KOZHIKODE


PETITIONER:

                  M/S WESTERN SOAPS
                  AZHIKODE P.O., KANNUR REPRESENTED BY ITS PROPRIETOR
                  UDAYABHANU, S/O.BALAKRISHNAN, AGED 51 YEARS,
                  RESIDING AT NALAMVEETIL HOUSE, AZHIKODE P.O.,
                  KANNUR.

                  BY ADVS.
                  SRI.K.R.AVINASH (KUNNATH)
                  SRI.ABDUL RAOOF PALLIPATH

RESPONDENT:

                  STATE OF KERALA
                  REPRESENTED BY SECRETARY OF DEPARTMENT OF REVENUE,
                  GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN -
                  695 001.


OTHER PRESENT:

                  SR GP MOHAMMED RAFIQ



   THIS OP TAX HAVING COME UP FOR ADMISSION ON 11.01.2021,
   THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 O.P.(Tax) No.4 of 2021               2




                                     JUDGMENT

Dated this the 11th day of January 2021

S.V.Bhatti, J.

The appellant in T.A.(VAT) Nos.175 and 176 of 2020 is the petitioner.

The petitioner filed the said Tax Appeals questioning the order dated

24.7.2020 of Deputy Commissioner (Appeals) , SGST Department, Kannur

in VATA Nos.206 and 207 of 2019. The petitioner moved stay petitions,

INTP Nos. 233 and 234 of 2020, before the Appellate Tribunal. The

Appellate Tribunal through the order in Ext.P3 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 28.10.2020. 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.K.R.Avinash argues that the Tribunal is very right in granting

stay of recovery of amount covered by the subject matter of appeals.

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. Senior Government Pleader Mohammed Rafiq 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.P3. Without prejudice and not

recorded a concession 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. 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 have suffered substantial financial loss due to a fire accident in the work

place and financial difficulties are faced by petitioner. Hence we are

satisfied condition in Ext.P3 could be modified as follows:

"The recovery proceedings are stayed till the disposal of the appeals

subject to the condition the petitioner deposits 30% of the modified demand

in three equal instalments, the first instalment becoming due and payable on

or before 20th of February 2021. The petitioner furnishes simple bond for

the balance amount on or before 20th February 2021".

The petitioner commits default of one instalment, the stay granted by

Ext.P3 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 ASSESSMENT ORDER NO.32120530547/2016-17 DATED 15/10/2020 ISSUED BY THE STATE TAX OFFICER, FIRST CIRCLE, KANNUR.

EXHIBIT P2 TRUE COPY OF THE ASSESSMENT ORDER NO.32120530547/2017-18 DATED 15/10/2020 ISSUED BY THE STATE TAX OFFICER, FIRST CIRCLE-KANNUR.

EXHIBIT P3 TRUE COPY OF THE COMMON ORDER DATED 28/10/2020 IN INTP NO.233/2020 & INTO.NO.234/2020 IN T.A.(VAT) 175/2020 & ADDED TAX/AGRICULTURAL INCOME TAX & SALES TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH, KOZHIKODE.

EXHIBIT P4 TRUE COPY OF THE LETTER DATED 10/07/2020 ISSUED BY WARD MEMBER AZHIKODE GRAMAPANCHAYAT IN KANNUR MUNICIPALITY.