M/S. Sdf Industries Ltd vs The Dy. Commissioenr Of State ...
2022 Latest Caselaw 9038 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
           THE HONOURABLE MR.JUSTICE S.V.BHATTI
                             &
         THE HONOURABLE MR.JUSTICE BASANT BALAJI
 WEDNESDAY, THE 27TH DAY OF JULY 2022 / 5TH SRAVANA, 1944
                  OP (TAX) NO. 29 OF 2022
  (TA(VAT) 13/22 OF THE KERALA VALUE ADDED TAX APPELLATE
                    TRIBUNAL, KOZHIKODE)
PETITIONER/S:

         M/S. SDF INDUSTRIES LTD.
         AGED 58 YEARS
         CHANDRA NAGAR, PALAKKAD, REPRSENTED BY SUNNY
         MATHEW, SENIOR LAISON EXECUTIVE , PIN - 678001
         BY ADVS.
         HARISANKAR V. MENON
         MEERA V.MENON
         R.SREEJITH
         K.KRISHNA


RESPONDENT/S:

    1    THE DY. COMMISSIOENR OF STATE TAXES
         STATE GST DEPARTMENT, PALAKKAD, PIN - 678001
    2    KERALA VALUE ADDED TAX APPELLATE TRIBUNAL
         CHEROOTTY ROAD, KOZHIKODE, REPRESENTED BY ITS AST.
         SECRETARY , PIN - 673032
OTHER PRESENT:

         SR GP V.K. SHAMSUDHEEN


     THIS OP TAX HAVING COME UP FOR ADMISSION ON 27.07.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP (TAX) NO. 29 OF 2022


                                      -2-




                                S.V.BHATTI
                       & BASANT BALAJI, JJ.
   - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - -
                 OP (TAX) NO. 29 OF 2022
   - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - -

                             JUDGMENT

(Dated this the 27th day of July 2022)

Basant Balaji J.,

On 24.6.2022 this Court ordered notice. Adv.V.K.Shamsudheen accepted notice and sought time to get instructions in the matter. Today, we have heard Adv.Harishankar V. Menon and Adv.V.K.Shamsudheen, the learned Government Pleader, for the parties.

2. The O.P.(Tax) case is filed questioning the conditional order of stay granted by the Tribunal in Interlocutory Petitions in respective Appeal for appreciating the alleged onerous condition imposed by the Tribunal. The following portion from the impugned order is extracted OP (TAX) NO. 29 OF 2022

below :

"(a) This petition stands allowed.

(b) The recovery proceedings are stayed till the disposal of the Appeal or for six months, whichever happens earlier on the petitioner depositing 20% of the disputed amount of tax and on furnishing simple bond for the balance amount within one month from the date of receipt of copy of this order.

(c) The appeal will be notified for hearing on priority basis."

3. Adv.Harisankar placed strong reliance on the order

in Ext.P5 in O.P.Rev.136/2016 to contend that this Court,

after taking note of all the attendant circumstances in a

matter similar to the present, held that the value of de-

mineralised water has to be taken as 30 ps. per litre.

Applying the said adjudication as in the nature of

declaration, the condition to deposit 20% of the disputed

amount of tax is onerous and seeks the indulgence of the

Court to grant firstly, unconditional stay and secondly, put OP (TAX) NO. 29 OF 2022

the petitioner to a reasonable condition for availing the

benefit of stay during the pendency of the appeal.

4. Adv.Shamsudheen opposes the modification of

condition imposed by the Tribunal. Firstly, it is argued that

the order in Ext.P5 may not be taken as conclusive in all

cases and circumstances. The substantial issue is canvassed

before the Tribunal. By taking note of the controversy of

adjudication before the Tribunal, the Tribunal rightly

ordered deposit of 20% of the disputed amount of tax. It is

argued without prejudice to the first argument that, the

petitioner is not entitled for unconditional stay of recovery

of disputed tax during the pendency of the appeal.

5. We have perused the records and taken note of the

respective contentions put forward by the counsel. OP(Tax) OP (TAX) NO. 29 OF 2022

cases are filed questioning the conditional interim order of

stay. In our jurisdiction under Article 227 of the Constitution

of India, we are not expected to interfere or interdict the

orders of the Tribunal unless manifest injustice is pointed out

and the discretion is not exercised commensurate to the

controversy pending before the Tribunal. In our considered

view, the Tribunal has rightly held that the petitioner ought

to be put to condition for availing the stay of recovery of

demanded tax. However, the condition directing deposit of

20% of the disputed amount of tax at this stage and in the

circumstances of the case, appears to be harsh and onerous.

Hence, we modify the order as "depositing 15 paise per litre

on the total quantity of de- mineralised water and furnishing

simple bond from the balance amount within four weeks

from today". The order shall not be understood as this Court

expressed a view on the merits of the matter. OP (TAX) NO. 29 OF 2022

Original Petition is disposed of as above.

sd

S.V.BHATTI, JUDGE

sd

BASANT BALAJI, JUDGE dl/ OP (TAX) NO. 29 OF 2022

APPENDIX OF OP (TAX) 29/2022

PETITIONER EXHIBITS Exhibit P1 COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2017-18 DTD. 30-01-2021 Exhibit P2 COPY OF THE ORDER PASSED BY DEPUTY COMMISSIONER (APPEALS), PALAKKAD DTD. 13-08-2021 Exhibit P3 COPY OF APPEAL FILED BEFORE THE 2ND RESPONDENT 15-01-2022 Exhibit P4 COPY OF STAY PETITION FILED BEFORE THE 2ND RESPONDENT DTD. 15-01-2022 Exhibit P5 COPY OF JUDGMENT IN OTR NO. 136/2016 27-

09-2019 Exhibit P6 COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT 28-03-2022