Cannanore County Club And Resorts ... vs The Assistant Commissioner Of ...
2021 Latest Caselaw 10751 Ker

                    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 30TH DAY OF MARCH 2021 / 9TH CHAITHRA, 1943

                                WA.No.571 OF 2021

      AGAINST THE JUDGMENT IN WP(C) 6614/2021(B) OF HIGH COURT OF KERALA


APPELLANT/S:

                 CANNANORE COUNTY CLUB AND RESORTS PVT. LTD
                 KATTAMPALLY, KANNUR, HAVING TRADE NAME AS KAIRALI HERITAGE,
                 REPRESENTED BY ITS DIRECTOR, R.ANANTHAKRISHNAN.

                 BY ADVS.
                 SRI.N.MURALEEDHARAN NAIR
                 SRI.ANTONY JONES

RESPONDENT/S:

       1         THE ASSISTANT COMMISSIONER OF STATE TAX
                 STATE GOODS AND SERVICE TAX DEPARTMENT, SPECIAL CIRCLE,
                 KANNUR-670004.

       2         THE KERALA VALUE ADDED TAX APPELLATE TRIBUNAL,
                 ADDITIONAL BENCH, KOZHIKODE-673006.

       3         THE DEPUTY COMMISSIONER,
                 STATE GOODS AND SERVICE TAX DEPARTMENT, KANNUR-670002.

       4         THE MANAGER,
                 UNION BANK, WESCO BUILDING, CHOVVA-670006.


OTHER PRESENT:

                 SR GP MOHD RAFIQ

      THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 30.03.2021, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
 W.A. No. 571/2021
                                     -2-




                             JUDGMENT

Dated this the 30th day of March 2021

S.V. Bhatti, J.

Petitioner is the appellant. The appellant filed Tax Appeal

questioning the order dated 17.08.2019 of Deputy Commissioner

(Appeals), SGST Department, Kozhikode in STA No.13 of 2018.

The appellant moved stay petition, INTP No. 21 of 2019, before

the Appellate Tribunal. The Appellate Tribunal through the

order in Ext.P7 granted stay of recovery of amount covered by

the subject matter of appeal, subject to the appellant depositing

30% of the modified demand and also on furnishing simple bond

for the balance amount within one month from 14.02.2020. The

appellant questioned the condition directing deposit of 30% of

the amount covered by the modified order in W.P.(C)

No.6614/2021. The learned Single Judge, through the judgment W.A. No. 571/2021

impugned in the appeal, disposed of the writ petition filed by

the appellant with liberty to approach the Tribunal for

instalments. Hence the Writ Appeal.

2. Adv. N. Muraleedharan Nair 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 fact stated by the

appellant. 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 appellant 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 appellant are in no way relevant for stipulating

the condition of 30% deposit of modified demand. If such

conditions are interdicted, as a matter of course, then the W.A. No. 571/2021

recovery of tax is adversely affected in all the pending matters.

Without prejudice and not recording a concession as made by

him, he informs the Court that the reasons stated by appellant

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

appellant 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 appellant claims to have suffered substantial financial

loss. Hence, we are satisfied condition in Ext.P7 could be

modified as follows:

W.A. No. 571/2021

"The recovery proceedings are stayed till the disposal of

the appeal subject to the condition the appellant deposits 30% of

the modified demand in three equal instalments, the first

instalment becoming due and payable on or before 30 th of April

2021. The appellant furnishes simple bond for the balance

amount on or before 30th April 2021".

The appellant commits default of one instalment, the stay

granted by Ext.P7 and modified by this judgment would stand

vacated. The Writ Appeal stands disposed of as indicated

above.

Sd/-

S.V.BHATTI

JUDGE

Sd/-

BECHU KURIAN THOMAS

JUDGE

jjj