Madras High Court
M/S.Chennai Petroleum ... vs The Deputy Commissioner (Ct) – Iii ... on 8 April, 2021
Writ Petition Nos.8676 & 8678 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.04.2021
CORAM
THE HONOURABLE DR. JUSTICE ANITA SUMANTH
Writ Petition Nos.8676 and 8678 of 2021
and WMP Nos.9214 and 9215 of 2021
M/s.Chennai Petroleum Corporation Ltd.,
(represented by its General Manager – Finance,
P.Rajasekar)
No.536, Anna Salai, Chennai – 600 018
.. Petitioner in both W.Ps
Vs
1 The Deputy Commissioner (CT) – III (FAC)
Large Taxpayers Unit
34, Marshalls Road, Egmore,
Chennai – 600 008.
2. The Joint Commissioner (CT) (Appeals)
Chennai, Papjm Annexure Building,
III Floor, Greams Road, Chennai – 600 006.
…Respondents in both W.Ps
Prayer: Writ Petitions filed under Article 226 of the Constitution of India
praying to Writ of Certiorarified Mandamus calling for the records on the files
of the 2nd respondent herein in SP Nos.05 & 06/2021 in
A.P.No.TNVAT/07&08/2021 dated 11.03.2021, quash the same while directing
the 2nd respondent to redispose the stay application in S.P.No.05&06/2021 in
AP No.TNVAT/07&08/2021 dated 11.03.2021.
https://www.mhc.tn.gov.in/judis/
Writ Petition Nos.8676 & 8678 of 2021
For Petitioner : Mr.N.Prasad
For Respondents : Mr.ANR.Jayaprathap
Government Advocate
*********
COMMON ORDER
Mr.ANR.Jayaprathap, learned Special Government Pleader accepts
notice for the respondents and expresses his readiness to proceed with the
matter finally even at the stage of admission. Hence, by consent of both sides,
these Writ Petitions are disposed finally at this stage.
2. The petitioner has challenged orders passed by the second
respondent/Joint Commissioner (CT)(Appeals) dated 11.03.2021 in the stay
applications filed by the petitioner, pending first appeals challenging orders of
assessment under the Tamil Nadu Value Added Tax Act, 2006 (in short 'Act')
for the periods 2012-13 and 2013-14 dated 19.07.2017 and 24.07.2017
respectively.
3. The aforesaid orders of assessment were earlier subject matter of Writ
Petitions in W.P.Nos.24979 to 24982 of 2017 and an interim order was granted
at the time of admission on 20.09.2017 to the effect that 25% of the disputed
demand be paid, which condition has been complied with. Thereafter, and
after completion of pleadings, the Writ Petitions have come to be disposed on
07.12.2020 wherein this Court relegated the petitioner to statutory appeal.
https://www.mhc.tn.gov.in/judis/
Writ Petition Nos.8676 & 8678 of 2021
Appeals have been filed and inter alia applications for stay were also filed,
which have come to be disposed by way of the present impugned orders.
4. At first blush, I note that the impugned orders are non-speaking. The
basis for decision in an application for interim protection would be the trifecta
of whether there is a prima facie case, financial stringency and balance of
convenience for grant of orders. The applications for stay filed by the
petitioner are detailed and seeks to make out a case on the aspect of prima facie
case as well as on balance of convenience citing the automatic charge created
by virtue of Section 42 of the Act.
5. The petitioner, has on merits, relied upon the judgment of the Supreme
Court in Commercial Tax Officer Vs A. Infrastructure Ltd. (87 VST 190) on the
applicability of Section 19(12) relating to availment of Input Tax Credit (ITC)
and whether the grant of ITC would be pro-rata in a case where a part of the
product manufactured were liable to tax and the remaining, not liable to charge.
6. As far as financial stringency is concerned, there is no quarrel on the
position that the petitioner has sufficient resources to meet the liability, if and
when such liability becomes confirmed and demand is raised.
7. The aforesaid case law has been noticed by the first appellate
authority, who rightly states that the grant or refusal of a request for stay is a
matter of exercise of discretion. Having said so, it then becomes incumbent
https://www.mhc.tn.gov.in/judis/
Writ Petition Nos.8676 & 8678 of 2021
upon him to consider the three factors for grant of stay or rejection thereof and
pass a speaking order on the applicability of the aforesaid factors to the facts
and circumstances as well as the legalities that arise in a particular case.
8. However, this has not be done in the present matter and the first
appellate authority proceeds to pass a rather mechanical order calling upon the
petitioner to remit a further 25% of tax and furnish a bank guarantee for the
balance. This is akin to orders that are routinely passed in stay applications
and ought not to be passed, as a matter of rote. The impugned orders are set
aside.
9. Let the petitioner be heard and orders passed afresh on the stay
applications, within a period of four (4) weeks from today. Till such time, no
proceedings for recovery shall be initiated.
10. These Writ Petitions are disposed in the aforesaid terms. No costs.
Connected Miscellaneous Petitions are closed.
08.04.2021
Index: Yes/No
Speaking/Non speaking order
sl
To
1 The Deputy Commissioner (CT) – III (FAC)
Large Taxpayers Unit, 34, Marshalls Road, Egmore,
Chennai – 600 008.
2. The Joint Commissioner (CT) (Appeals)
Chennai, Papjm Annexure Building,
III Floor, Greams Road, Chennai – 600 006.
https://www.mhc.tn.gov.in/judis/
Writ Petition Nos.8676 & 8678 of 2021
Dr.ANITA SUMANTH,J.
Sl
Writ Petition Nos.8676 and 8678 of 2021
and WMP Nos.9214 and 9215 of 2021
08.04.2021
https://www.mhc.tn.gov.in/judis/
