K.T.Manojkumar vs The State Tax Officer
2021 Latest Caselaw 19399 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
                  THE HONOURABLE MR.JUSTICE S.V.BHATTI
                                      &
                 THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
   THURSDAY, THE 16TH DAY OF SEPTEMBER 2021 / 25TH BHADRA, 1943
                        OP (TAX) NO. 12 OF 2021
PETITIONER/APPELLANT/APPELLANT/ASSESSEE:

             K.T.MANOJKUMAR
             AGED 53 YEARS
             PROPRIETOR, M/S.GAYATHRI GRAND, OPP.GOVERNMENT
             HOSPITAL, CHERPULASSERY, PALAKKAD.
             BY ADVS.
             HARISANKAR V. MENON
             MEERA V.MENON


RESPONDENT/RESPONDENT/RESPONDENT/REVENUE:

    1        THE STATE TAX OFFICER
             WORKS CONTRACT, STATE GOODS AND SERVICES TAX
             DEPARTMENT, PALAKKAD-678001.
    2        THE KERALA VALUE ADDED TAX APPELLATE TRIBUNAL
             CHEROOTTY ROAD, KOZHIKODE-673032, REPRESENTED BY ITS
             ASST. SECRETARY.

OTHER PRESENT:

             SR GP SHAMSUDHEEN V.K.., ADV KRISHNA FOR THE PETITIONER



     THIS OP TAX HAVING COME UP FOR ADMISSION ON 16.09.2021, ALONG
WITH OP (TAX).13/2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 OP(TAX Nos.12& 13 of 2021           2



                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                        PRESENT
                   THE HONOURABLE MR.JUSTICE S.V.BHATTI
                                           &
                  THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
    THURSDAY, THE 16TH DAY OF SEPTEMBER 2021 / 25TH BHADRA, 1943
                             OP (TAX) NO. 13 OF 2021
      AGAINST THE ORDER IN TAVAT 26/2021 OF AGRL.I.T.ADDITIONAL
                            BENCH,KOZHIKODE, KOZHIKODE
PETITIONER/APPELLANT/APPELLANT/ASSESSEE:

             K.T.MANOJKUMAR
             AGED 53 YEARS
             PROPRIETOR, M/S. GAYATHRI GRAND, OPP. GOVERNMENT
             HOSPITAL, CHERPULASSERY, PALAKKAD
             BY ADVS.
             HARISANKAR V. MENON
             MEERA V.MENON
             R.SREEJITH
             K.KRISHNA


RESPONDENT/RESPONDENT/RESPONDENT/REVENUE:

      1      THE STATE TAX OFFICER (WC)
             WORKS CONTRACT, STATE GOODS AND SERVICE TAX DEPARTMENT,
             PALAKKAD-678 001
      2      THE KERALA VALUE ADDED TAX APPELLATE TRIBUNAL,
             CHEROOTTY ROAD, KOZHIKODE-673 032, REPRESENTED BY ITS
             ASST.SECRETARY

OTHER PRESENT:

             SR GP SHAMSUDHEEN V.K.., ADV KRISHNA FOR THE PETITIONER



      THIS OP TAX HAVING COME UP FOR ADMISSION ON 16.09.2021, ALONG
WITH OP (TAX).12/2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 OP(TAX Nos.12& 13 of 2021         3




                                JUDGMENT

O.P.(TAX)Nos.12 & 13 of 2021

S.V.Bhatti, J.

The appellant in T.A.(VAT) Nos.25 and 26 of 2021 is the

petitioner. The petitioner filed the said Tax Appeals questioning the

order dated 30.10.2020 of Deputy Commissioner (Appeals), SGST

Department, Palakkad in KVATA Nos.153 and 154 of 2019. The

petitioner moved stay petitions, INTP Nos. 30 and 31 of 2021, before

the Appellate Tribunal. The Appellate Tribunal through the order in

Ext.P4 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 22.04.2021. 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.Harisankar V.Menon 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 Shamsudheen 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.P4. 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 a few set backs due to on going situation arising

from Covid-19 and financial difficulties are being faced by petitioner.

Hence we are satisfied condition in Ext.P4 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 15/10/2021. The petitioner

furnishes simple bond for the balance amount on or before 15/10/2021".

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

Ext.P4 and modified by this order would stand vacated.

The Original Petition stands disposed of as indicated above.

Sd/-

S.V.BHATTI JUDGE

Sd/-

VIJU ABRAHAM JUDGE css/

APPENDIX OF OP (TAX) 13/2021

PETITIONER EXHIBITS Exhibit P1 COPY OF ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2012-13 Exhibit P2 COPY OF APPELLATE ORDER OF THE DY COMMISSIONER (APPEALS),PALAKKAD Exhibit P3 COPY OF APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT Exhibit P3(a) COPY OF STAY PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT 23.02.2021 Exhibit P4 COPY OF ORDER ISSUED BY THE 3RD RESPONDENT

APPENDIX OF OP (TAX) 12/2021

PETITIONER EXHIBITS Exhibit P1 COPY OF ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2010-11 DATED 27.07.2019.

Exhibit P2 COPY OF APPELLATE ORDER OF THE DY.COMMISSIONER (APPEALS), PALAKKAD DATED 30.10.2020.

Exhibit P3 COPY OF APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 23.02.2021.

Exhibit P3(a) COPY OF STAY PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 23.02.2021. Exhibit P4 COPY OF ORDER ISSUED BY THE 2ND RESPONDENT DATED 22.04.2021.