BENCY AND CO. V. COMMERCIAL TAX OFFICER(R),

WP(C)/42314/2018

AI Insights

The case involves Bency and Co., the petitioner, who is a dealer under the Kerala Tax on Luxuries Act, contesting the assessment proceedings initiated by the Commercial Tax Officer. The petitioner filed a second appeal and stay petitions before the Kerala Agricultural Income Tax and Sales Tax Appellate Tribunal, which resulted in an interim order requiring the deposit of 30% of the disputed tax and security for the balance. The petitioner, citing financial difficulties, sought more time to comply with these directions. The High Court's decision focused on balancing the Tribunal's statutory discretion with the petitioner's plea for financial leniency.

• Counselvise Citation: [2018] 140 COUNSELVISE.COM (IT) 692128 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 21-12-2018
• Assessment Year: misc
• Laws Referred To: Kerala Tax on Luxuries Act
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: THUSHARA JAMES
• Assessee Lawyers: S KUMAR; M RAJAGOPAL
• Keywords: Assessment proceedings; Financial Difficulties; Luxury tax; Stay Petition
• Section: 30

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU FRIDAY ,THE 21ST DAY OF DECEMBER 2018 / 30TH AGRAHAYANA, 1940 WP(C).No. 42314 of 2018 PETITIONER/S: BENCY AND CO.,EMERALD HOTEL, MAJOR ROAD, VYTTILA, KOCHI-682019, REPRESENTED BY ITS AUTHORISED SIGNATORY (SALES AND OPERATIONS) SRI.NOUSHAD. BY ADVS. SRI.S.ANIL KUMAR (TRIVANDRUM) SRI.M.RAJAGOPAL RESPONDENT/S: 1 COMMERCIAL TAX OFFICER(R), LUXURY TAX, CLAS TOWER, 2ND FLOOR, OLD RLY. STATION ROAD, KOCHI-682018. 2 THE KERALA AGRICULTURAL INCOME TAX AND SALES TAX APPELLATE TRIBUNAL, ADDL. BENCH, THEVARA, KOCHI, PIN-682015, REPRESENTED BY ITS SECRETARY. 3 THE INSPECTING ASST. COMMISSIONER, COMMERCIAL TAXES, KAKKANAD, KOCHI-682030. BY DR THUSHARA JAMES, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 42314 of 2018 2 JUDGMENT Assailing the assessment proceedings, the petitioner, a dealer under the Kerala Tax on Luxuries Act, filed a second appeal, along with petitions for stay, before the 2nd respondent Tribunal. The 2nd respondent disposed of the stay petitions through a common order. The petitioner suffered an interim order : to deposit 30% of the disputed tax in each appeals and to furnish security for the balance amount. 2. After initially setting out the petitioner's financial difficulties, the learned counsel nevertheless pleads for some more time to comply with the 2nd respondent's directions. 3. According to the petitioner's counsel, if the petitioner is given some breathing time, he will comply with the interim direction. 4. Under these circumstances, I stress the obvious: this Court will not interfere with the discretion of the Tribunal in imposing any condition to sustain a stay, more particularly when that discretion has a statutory sanction. Nevertheless, given the persistent plea the petitioner's counsel advanced that the petitioner has been facing acute WP(C).No. 42314 of 2018 3 financial problems, this Court may take considerate view of the situation . I, therefore, dispose of the writ petition holding that the petitioner shall deposit the amount, as the Tribunal directed, in three equal monthly instalments. On the other hand, if the petitioner fails to pay any one instalment within the stipulated time, the Tribunal can act as it deems it proper. Sd/- DAMA SESHADRI NAIDU ajt JUDGE WP(C).No. 42314 of 2018 4 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF ASSESSMENT ORDER DATED 12.11.2014 ISSUED BY THE 1ST RESPONDENT FOR THE MONTH OF APRIL, 2014. EXHIBIT P1 (a) COPY OF ASSESSMENT ORDER DATED 12.11.2014 ISSUED BY THE 1ST RESPONDENT FOR THE MONTH OF MAY, 2014. EXHIBIT P1 (b) COPY OF ASSESSMENT ORDER DATED 12.11.2014 ISSUED BY THE 1ST RESPONDENT FOR THE MONTH OF JUNE, 2014. EXHIBIT P1 (C) COPY OF ASSESSMENT ORDER DATED 12.11.2014 ISSUED BY THE 1ST RESPONDENT FOR THE MONTH OF JULY, 2014. EXHIBIT P1 (d) COPY OF ASSESSMENT ORDER DATED 12.11.2014 ISSUED BY THE 1ST RESPONDENT FOR THE MONTH OF AUGUST, 2014. EXHIBIT P1 (e) COPY OF ASSESSMENT ORDER DATED 16.4.2015 ISSUED BY THE 1ST RESPONDENT FOR THE MONTH OF SEPTEMBER, 2014. EXHIBIT P1 (f) COPY OF ASSESSMENT ORDER DATED 16.4.2015 ISSUED BY THE 1ST RESPONDENT FOR THE MONTH OF OCTOBER, 2014. EXHIBIT P1 (g) COPY OF ASSESSMENT ORDER DATED 16.4.2015 ISSUED BY THE 1ST RESPONDENT FOR THE MONTH OF NOVEMBER, 2014. EXHIBIT P1 (h) COPY OF ASSESSMENT ORDER DATED 16.4.2015 ISSUED BY THE 1ST RESPONDENT FOR THE MONTH OF DECEMBER, 2014. EXHIBIT P2 COPY OF ORDER DATED 30.9.2016 OF THE DY. COMMISSIONER (APPEALS), ERNAKULAM IN RELATION OF EXT.P1 TO P1(d). EXHIBIT P2 (a) COPY OF ORDER DATED 30.9.2016 OF THE DY. COMMISSIONER (APPEALS), ERNAKULAM IN RELATION OF EXT.P1(e) TO P1(h). EXHIBIT P3 COPY OF APPEAL MEMORANDUM AGAINST EXT.P2 IN RELATION TO EXT.P1 ORDER. WP(C).No. 42314 of 2018 5 EXHIBIT P3 (a) COPY OF APPEAL MEMORANDUM AGAINST EXT.P2 IN RELATION TO EXT.P1(a) ORDER. EXHIBIT P3 (b) COPY OF APPEAL MEMORANDUM AGAINST EXT.P2 IN RELATION TO EXT.P1(b) ORDER. EXHIBIT P3 (c) COPY OF APPEAL MEMORANDUM AGAINST EXT.P2 IN RELATION TO EXT.P1(c) ORDER. EXHIBIT P3 (d) COPY OF APPEAL MEMORANDUM AGAINST EXT.P2 IN RELATION TO EXT.P1(d) ORDER. EXHIBIT P3 (e) COPY OF APPEAL MEMORANDUM AGAINST EXT.P2(a) IN RELATION TO EXT.P1(e) ORDER. EXHIBIT P3 (f) COPY OF APPEAL MEMORANDUM AGAINST EXT.P2(a) IN RELATION TO EXT.P1(f) ORDER. EXHIBIT P3 (g) COPY OF APPEAL MEMORANDUM AGAINST EXT.P2(a) IN RELATION TO EXT.P1(g) ORDER. EXHIBIT P3 (h) COPY OF APPEAL MEMORANDUM AGAINST EXT.P2(a) IN RELATION TO EXT.P1(h) ORDER. EXHIBIT P4 COPY OF STAY PETITION FILED IN EXT.P3 APPEAL. EXHIBIT P4(a) COPY OF STAY PETITION FILED IN EXT.P3(a) APPEAL. EXHIBIT P4 (b) COPY OF STAY PETITION FILED IN EXT.P3(b) APPEAL. EXHIBIT P4 (c) COPY OF STAY PETITION FILED IN EXT.P3(c) APPEAL. EXHIBIT P4 (d) COPY OF STAY PETITION FILED IN EXT.P3(d) APPEAL. EXHIBIT P4 (e) COPY OF STAY PETITION FILED IN EXT.P3(e) APPEAL. EXHIBIT P4 (f) COPY OF STAY PETITION FILED IN EXT.P3(f) APPEAL. EXHIBIT P4 (g) COPY OF STAY PETITION FILED IN EXT.P3(g) APPEAL. EXHIBIT P4 (h) COPY OF STAY PETITION FILED IN EXT.P3(g) APPEAL. EXHIBIT P5 COPY OF COMMON ORDER DATED 22.10.2018 ISSUED BY THE 2ND RESPONDENT. WP(C).No. 42314 of 2018 6 EXHIBIT P6 COPY OF THE NOTICE DATED 29.12.2014 ISSUED BY THE 4TH RESPONDENT UNDER THE RR ACT IN RESPECT OF EXT.P1. EXHIBIT P6 (a) COPY OF THE NOTICE DATED 29.12.2014 ISSUED BY THE 3RD RESPONDENT UNDER THE RR ACT IN RESPECT OF EXT.P1(a). EXHIBIT P6(b) COPY OF THE NOTICE DATED 29.12.2014 ISSUED BY THE 3RD RESPONDENT UNDER THE RR ACT IN RESPECT OF EXT.P1(b). EXHIBIT P6 (c) COPY OF THE NOTICE DATED 29.12.2014 ISSUED BY THE 3RD RESPONDENT UNDER THE RR ACT IN RESPECT OF EXT.P1(c). EXHIBIT P6 (d) COPY OF THE NOTICE DATED 29.12.2014 ISSUED BY THE 3RD RESPONDENT UNDER THE RR ACT IN RESPECT OF EXT.P1(d). EXHIBIT P6 (e) COPY OF THE NOTICE DATED 25.2.2017 ISSUED BY THE 3RD RESPONDENT UNDER THE RR ACT IN RESPECT OF EXT.P1(e). EXHIBIT P6 (f) COPY OF THE NOTICE DATED 25.2.2017 ISSUED BY THE 3RD RESPONDENT UNDER THE RR ACT IN RESPECT OF EXT.P1(f). EXHIBIT P6 (g) COPY OF THE NOTICE DATED 25.2.2017 ISSUED BY THE 3RD RESPONDENT UNDER THE RR ACT IN RESPECT OF EXT.P1(g). EXHIBIT P6 (h) COPY OF THE NOTICE DATED 25.2.2017 ISSUED BY THE 3RD RESPONDENT UNDER THE RR ACT IN RESPECT OF EXT.P1(h). RESPONDENT(S)' EXHIBITS: NIL // TRUE COPY // P.A. TO JUDGE "