Kerala High Court
Rajeev Gandhi House Construction ... vs State Of Kerala on 23 June, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE S.V.BHATTI
&
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
WEDNESDAY, THE 23RD DAY OF JUNE 2021 / 2ND ASHADHA, 1943
OP (TAX) NO. 9 OF 2021
AGAINST THE ORDER IN INTP No.198/2020 in TA(VAT)
NO.139/2020 OF VAT APPELLATE TRIBUNAL, KOZHIKODE
PETITIONER/PETITIONER:
RAJEEV GANDHI HOUSE CONSTRUCTION CO-OPERATIVE
SOCIETY LTD NO.C 1598
KOOTHUPARAMBA - 670643,
REPRESENTED BY ITS SECRETARY
CHITHTRA P.P., AGED 47 YEARS,
D/O. REDGUNATHEN
BY ADVS.
SRI.KALEESWARAM RAJ
SRI.VARUN C.VIJAY
KUM.A.ARUNA
KUM.THULASI K. RAJ
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF TAX, SECRETARIAT,
THIRUVANANTHAPURAM - 695001.
2 VALUE ADDED TAX/AGRICULTURAL INCOME TAX AND
SALES TAX APPELLATE TRIBUNAL.
O.P.(Tax) No.9/21 -:2:-
REPRESENTED BY ITS REGISTRAR,
KOZHIKODE - 673001.
3 DEPUTY COMMISSIONER OF STATE TAX
STATE GOODS AND SERVICE TAX DEPARTMENT,
SPECIAL CIRCLE,
KANNUR - 673002.
4 JOINT COMMISSIONER(APPEALS) II
STATE GOODS AND SERVICE TAX DEPARTMENT,
KOZHIKODE - 673305.
5 ASSISTANT COMMISSIONER OF STATE TAX
SPECIAL CIRCLE,
STATE GOODS AND SERVICE TAX DEPARTMENT,
KANNUR - 670002.
6 ASSISTANT DIRECTOR OF CO-OPERATIVE AUDIT
CO-OPERATIVE DEPARTMENT,
KUTHUPARAMBA,
KANNUR - 670643.
BY ADV.MOHAMMED RAFIQ, SR.GOVERNMENT PLEADER
THIS ORIGINAL PETITION (TAX) HAVING COME UP FOR
ADMISSION ON 23.06.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
O.P.(Tax) No.9/21 -:3:-
JUDGMENT
Dated this the 23rd day of June, 2021
Bechu Kurian Thomas, J.
Through this original petition, the petitioner, which is a co-
operative society, seeks for an expeditious disposal of T.A.(VAT)
No.139 of 2020 pending before the Value Added Tax (Appellate
Tribunal), Kozhikode.
2. This case has a background. The petitioner had
approached this Court earlier in O.P.(Tax) No.5 of 2021, challenging
the direction of the Appellate Tribunal to deposit 30% of the tax
demanded as a condition for stay of the order impugned before the
Tribunal. By judgment dated 12.1.2021, this Court found that the
Tribunal had rightly exercised the discretion by granting stay after
putting the petitioner to reasonable conditions. However, taking into
consideration the financial difficulties pleaded by the petitioner and
as a measure of indulgence, this Court permitted the petitioner to
deposit 30% of the tax demanded in five equal instalments, the first
of which was directed to commence on 21.2.2021.
3. Soon thereafter, the petitioner came up again in a review
petition as R.P. No.143 of 2021 in O.P. (Tax) No.5 of 2021 stating that
the five equal instalments directed are impossible for performance
and also that the default clause causes irreparable loss and injury.
Though this Court denied the grant of any unconditional stay, by
order dated 18.2.2021, a further leniency was shown to the petitioner
as an exceptional measure and modified the condition of payment of
the first instalment from 21.2.2021 to 21.3.2021. The five equal
instalments directed earlier was reviewed and made into ten equal
instalments with liberty to move the Tribunal for an expeditious
disposal of the appeal itself after payment of few of the instalments
directed.
4. With the second review being barred, petitioner has filed this
original petition seeking a direction as mentioned earlier and based
the relief sought for, on the first instalment paid.
5. When the matter came up for admission on 9.4.2021, this
court directed the original petition to be posted after payment of one
more instalment and thereafter when the matter came up, this Court
sought for a report as to the time required by the Tribunal to dispose
of the appeal on merits. Though the report as directed is still
awaited, it is submitted by the learned Government Pleader that the
appeal can be disposed of in a time bound manner, provided the
petitioner continues to pay the instalments, as directed by this Court
earlier.
6. We have heard Adv.Kaleeswaram Raj, learned counsel for
the petitioner and Adv.Mohammed Rafiq, learned Senior Government
Pleader for the respondents.
7. We have considered the contentions raised at the Bar. In
view of the submission of the learned Government Pleader and
taking into reckoning the orders passed by this Court, produced as
Ext.P13 and Ext.P15, we are of the view that this original petition can
be disposed of without going into the merits of the legal contentions
raised by the respondents on the maintainability of this original
petition itself.
8. Though the disposal of appeal will augur well for both sides,
petitioner cannot absolve itself from the mandate of the direction in
Ext.P15.
9. Taking into consideration the facts and circumstances
arising in the case including the fact that the Tribunal has not taken a
decision on the request of petitioner for early disposal made through
I.A. No.1 of 2021, this original petition is disposed of with the
following directions:
(a) The 2nd respondent Tribunal is directed to consider and
dispose of T.A.(VAT) No.139 of 2020 on or before 14.8.2021, subject
to condition (b) below.
(b) The petitioner shall comply with the payment by
instalments, as directed by us through Ext.P15 order dated
18.2.2021.
10. We make it clear that by directing the Tribunal for
expeditious disposal of T.A.(VAT) No.139 of 2020, the conditions
imposed in Ext.P15 order shall continue to remain as such.
The original petition is disposed of as above.
Sd/-
S.V.BHATTI
JUDGE
Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
APPENDIX
PETITIONER ANNEXURE
EXHIBIT P1 TRUE COPY OF THE PROCEEDING OF THE
ASSISTANT COMMISSIONER OF STATE TAX
DATED 26.02.2018.
EXHIBIT P2 TRUE COPY OF THE PROCEEDING 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
T.A(VAT) 139/2020 FILED BEFORE THE VAT
APPELLATE TRIBUNAL, KOZHIKODE.
EXHIBIT P4 TRUE COPY OF THE INTP 198/2020 IN TA NO.
139/2020.
EXHIBIT P5 TRUE COPY OF THE INTERIM ORDER DATED
27.08.2020 INTP NO.198/2020 IN TA(VAT)
139/2020.
EXHIBIT P6 TRUE COPY OF THE SECURITY BOND SUBMITTED
BY THE PETITIONER SOCIETY IN FROM 6 FOR
THE YEAR 2014-2015.
EXHIBIT P7 TRUE COPY OF THE PROCEEDING 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 WP(C) 15191/2019.
EXHIBIT P11 TRUE COPY OF THE INTERIM ORDER DATED
26.06.2019 IN WP(C) 15191/2019.
EXHIBIT P12 TRUE COPY OF THE JUDGMENT DATED
02.08.2018 IN WRIT APPEAL NO. 920/2018.
EXHIBIT P13 TRUE COPY OF THE JUDGMENT DATED
12.01.2021 IN OP(TAX) 5/2021.
EXHIBIT P14 TRUE COPY OF THE BALANCE OF THE
PETITIONER FOR THE YEAR 2019.
EXHIBIT P15 TRUE COPY OF THE JUDGMENT DATED
18.02.2021 IN RP. 143/2021.
EXHIBIT P16 TRUE COPY OF THE DEMAND DRAFT NO.103068
DATED 19.03.2021 TAKEN FROM KUTHUPARAMBA
BRANCH OF DISTRICT COOPERATIVE BRANCH,
KANNUR.
EXHIBIT P17 TRUE COPY OF THE DEMAND NOTICE DATED
09.02.2021.
EXHIBIT P18 TRUE COPY OF THE PETITION FILED FOR
ADVANCING HEARING OF EXT.P3
EXHIBIT P19 TRUE COPY OF THE COURIER RECEIPT
EXHIBIT P20 TRUE COPY OF THE D.D. BEARING NO.103095
DATED 19.4.2021
