BENCY & CO. V. COMMERCIAL TAX OFFICER (R)

OP (TAX)/4/2018

AI Insights

The case involves Bency & Co. Emerald Hotel, represented by its director, Sri Abdul Azeez, who appealed against the order of the Kerala Agricultural Income Tax and Sales Tax Appellate Tribunal. The Tribunal had returned the stamps for the appeals filed by the petitioner due to non-payment of the required 1% of the disputed tax within the stipulated time. The petitioner, despite the delay, paid the amount and sought the Tribunal's acceptance of the late payment along with an extension of time. The Tribunal's return of the stamps led to this petition, challenging the procedural handling of the payment and the substantive increase in the KLBF.

• Counselvise Citation: [2018] 140 COUNSELVISE.COM (IT) 740073 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 12-04-2018
• Assessment Year: misc
• Laws Referred To: Kerala Value Added Tax, Kerala Agricultural Income Tax and Sales Tax
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: MOHAMMED RAFEEQ
• Assessee Lawyers: S KUMAR; M RAJAGOPAL
• Keywords: Appellate Tribunal; Delay in payment; Disputed tax; Kerala Legal Benefit Fund
• Section: 19/17; 27/17

Judgement Text

" IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & THE HONOURABLE MR. JUSTICE ASHOK MENON THURSDAY, THE 12TH DAY OF APRIL 2018 / 22ND CHAITHRA, 1940 OP (TAX).No. 4 of 2018 AGAINST THE ORDER/JUDGMENT IN TA 19/17 TO 27/17 DATED 20.11.2017 of THE KERALA AGRICULTURAL INCOME TAX AND SALES TAX APPELLATE TRIBUNAL, ERNAKULAM PETITIONER(S) BENCY & CO. EMERALD HOTEL, MAJOR ROAD, VYTTILA, KOCHI-682019, REPRESENTED BY ITS DIRECTOR(SALES & OPERATIONS) SRI.ABDUL AZEEZ. 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 AGRICULTURAL INCOME TAX AND SALES TAX APPELLATE TRIBUNAL, THEVARA, KOCHI, PIN-682015, REPRESENTED BY ITS SECRETARY. 3. THE INSPECTING ASST. COMMISSIONER, COMMERCIAL TAXES, KAKKANAD, ERNAKULAM-682030. BY SRI.MOHAMMED RAFEEQ, SR. GOVERNMENT PLEADER THIS OP TAX HAVING COME UP FOR ADMISSION ON 12-04-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (TAX).No. 4 of 2018 (Q) APPENDIX PETITIONER(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 16-04-2015 ISSUED BY THE 1ST RESPONDENT FOR THE MONTH OF SEPTEMBER 2014. EXHIBIT P1(F) COPY OF ASSESSMENT ORDER DATED 16-04-2015 ISSUED BY THE 1ST RESPONDENT FOR THE MONTH OF OCTOBER 2014. EXHIBIT P1(G) COPY OF ASSESSMENT ORDER DATED 16-04-2015 ISSUED BY THE 1ST RESPONDENT FOR THE MONTH OF NOVEMBER 2014. EXHIBIT P1(H) COPY OF ASSESSMENT ORDER DATED 16-04-2015 ISSUED BY THE 1ST RESPONDENT FOR THE MONTH OF DECEMBER 2014. EXHIBIT P2 COPY OF ORDER DATED 30.09.2016 OF THE DY.COMMISSIONER (APPEALS) ERNAKULAM IN RELATION TO EXT.P1 TO EXT.P1(D) EXHIBIT P2(A) COPY OF ORDER DATED 30.09.2016 OF THE DY.COMMISSIONER (APPEALS) ERNAKULAM IN RELATION TO EXT.P1(E) TO EXT.P1(H) EXHIBIT P3 COPY OF APPEAL MEMORANDUM AGAINST EXT.P2 IN RELATION TO EXT.P1 ORDER. 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. OP (TAX).No. 4 of 2018 (Q) 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 PETITION FOR CONDONING DELAY FILED IN EXT.P3 APPEAL. EXHIBIT P4(A) COPY OF PETITION FOR CONDONING DELAY FILED IN EXT.P3 (A) APPEAL. EXHIBIT P4(B) COPY OF PETITION FOR CONDONING DELAY FILED IN EXT.P3 (B) APPEAL. EXHIBIT P4(C) COPY OF PETITION FOR CONDONING DELAY FILED IN EXT.P3 (C) APPEAL. EXHIBIT P4(D) COPY OF PETITION FOR CONDONING DELAY FILED IN EXT.P3 (D) APPEAL. EXHIBIT P4(E) COPY OF PETITION FOR CONDONING DELAY FILED IN EXT.P3 (E) APPEAL. EXHIBIT P4(F) COPY OF PETITION FOR CONDONING DELAY FILED IN EXT.P3 (F) APPEAL. EXHIBIT P4(G) COPY OF PETITION FOR CONDONING DELAY FILED IN EXT.P3 (G) APPEAL. EXHIBIT P4(H) COPY OF PETITION FOR CONDONING DELAY FILED IN EXT.P3 (H) APPEAL. EXHIBIT P5 COPY OF STAY PETITION FILED IN EXT.P3 APPEAL. EXHIBIT P5(A) COPY OF STAY PETITION FILED IN EXT.P3(A) APPEAL. EXHIBIT P5(B) COPY OF STAY PETITION FILED IN EXT.P3(B) APPEAL. EXHIBIT P5(C) COPY OF STAY PETITION FILED IN EXT.P3(C) APPEAL. EXHIBIT P5(D) COPY OF STAY PETITION FILED IN EXT.P3(D) APPEAL. EXHIBIT P5(E) COPY OF STAY PETITION FILED IN EXT.P3(E) APPEAL. EXHIBIT P5(F) COPY OF STAY PETITION FILED IN EXT.P3(F) APPEAL. EXHIBIT P5(G) COPY OF STAY PETITION FILED IN EXT.P3(G) APPEAL. EXHIBIT P5(H) COPY OF STAY PETITION FILED IN EXT.P3(H) APPEAL. EXHIBIT P6 COPY OF ORDER DATED 21-07-2017 ISSUED BY THE 2ND RESPONDENT. OP (TAX).No. 4 of 2018 (Q) EXHIBIT P7 COPY OF PETITION DATED 25.10.2017 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT IN EXT.P3 APPEAL. EXHIBIT P7(A) COPY OF PETITION DATED 25-10-2017 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT IN EXT.P3(A) APPEAL. EXHIBIT P7(B) COPY OF PETITION DATED 25-10-2017 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT IN EXT.P3(B) APPEAL. EXHIBIT P7(C) COPY OF PETITION DATED 25-10-2017 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT IN EXT.P3(C) APPEAL. EXHIBIT P7(D) COPY OF PETITION DATED 25-10-2017 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT IN EXT.P3(D) APPEAL. EXHIBIT P7(E) COPY OF PETITION DATED 25-10-2017 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT IN EXT.P3(E) APPEAL. EXHIBIT P7(F) COPY OF PETITION DATED 25-10-2017 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT IN EXT.P3(F) APPEAL. EXHIBIT P7(G) COPY OF PETITION DATED 25-10-2017 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT IN EXT.P3(G) APPEAL. EXHIBIT P7(H) COPY OF PETITION DATED 25-10-2017 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT IN EXT.P3(H) APPEAL. EXHIBIT P8 COPY OF LETTER DATED 20-11-2017 OF THE 2ND RESPONDENT. EXHIBIT P9 COPY OF NOTICE DATED 29-12-2014 ISSUED BY THE 4TH RESPONDENT UNDER THE RR ACT IN RESPECT OF EXT.P1 EXHIBIT P9(A) COPY OF NOTICE DATED 29-12-2014 ISSUED BY THE 3RD RESPONDENT UNDER THE RR ACT IN RESPECT OF EXT.P1(A) EXHIBIT P9(B) COPY OF NOTICE DATED 29-12-2014 ISSUED BY THE 3RD RESPONDENT UNDER THE RR ACT IN RESPECT OF EXT.P1(B) EXHIBIT P9(C)` COPY OF NOTICE DATED 29-12-2014 ISSUED BY THE 3RD RESPONDENT UNDER THE RR ACT IN RESPECT OF EXT.P1(C) EXHIBIT P9(D) COPY OF NOTICE DATED 29-12-2014 ISSUED BY THE 3RD RESPONDENT UNDER THE RR ACT IN RESPECT OF EXT.P1(D) OP (TAX).No. 4 of 2018 (Q) EXHIBIT P9(E) COPY OF NOTICE DATED 25.02.2017 ISSUED BY THE 3RD RESPONDENT UNDER THE RR ACT IN RESPECT OF EXT.P1(E)` EXHIBIT P9(F) COPY OF NOTICE DATED 25.02.2017 ISSUED BY THE 3RD RESPONDENT UNDER THE RR ACT IN RESPECT OF EXT.P1(F) EXHIBIT P9(G) COPY OF NOTICE DATED 25.02.2017 ISSUED BY THE 3RD RESPONDENT UNDER THE RR ACT IN RESPECT OF EXT.P1(G) EXHIBIT P9(H) COPY OF NOTICE DATED 25.02.2017 ISSUED BY THE 3RD RESPONDENT UNDER THE RR ACT IN RESPECT OF EXT.P1(H) //TRUE COPY// PS TO JUDGE. jg-12/4 K.VINOD CHANDRAN & ASHOK MENON, JJ. ------------------------------------------- O.P.(Taxes) No.4 of 2018 ------------------------------------------- Dated this the 12th day of April, 2018 J U D G M E N T Vinod Chandran, J. The petitioner is aggrieved with Ext.P8 by which the Office of the Appellate Tribunal for the Kerala Value Added Tax/Kerala Agricultural Income Tax and Sales Tax, returned the stamps paid in TA Nos.19/17 to 27/17. Those are appeals filed by the petitioner herein remitting 0.5% of the disputed amounts as Kerala Legal Benefit Fund. The Tribunal passed Ext.P6 order directing the appellant (petitioner herein) to pay 1% of the disputed tax within 15 days. The petitioner did not pay the amount within time, but however, paid the same with a delay of 81 days. The petitioner has also filed petitions to accept the same and to extend the time as granted in Ext.P6. The office of the Tribunal returned the same as per Ext.P8. We are of the opinion that though there was delay, it was up to the Tribunal to decide whether the same should be accepted or not. In such circumstances, the petitioner shall re-submit the stamps returned as per Ext.P8 and the Tribunal OP (Taxes)4/18 -2- shall consider Ext.P7 series of petitions within a period of one month from the date of receipt of a copy of this judgment. The Tribunal shall keep in mind that there is a challenge made to the enhancement of KLBF from 0.5% to 1% and this Court by interim order has directed satisfaction of half of the liability by executing a bond in a batch of Writ Petitions. The petitioner herein, though with delay, has paid up the entire amounts. The Original Petition is disposed of. Sd/- K.VINOD CHANDRAN JUDGE Sd/- ASHOK MENON JUDGE jg "