E.M.IBRAHIM V. THE AGRICULTURAL INCOME TAX AND COMMERCIAL TAX OFFICER

WP(C)/10185/2016

AI Insights

The case involves a writ petition filed by E.M. Ibrahim, the proprietor of M/s. Super One Curry Powder, challenging a conditional stay order (Ext.P5) issued by the Kerala Value Added Tax Additional Appellate Tribunal (2nd respondent). The stay order was part of the appellate process against an assessment order for the year 2009-10, which required the petitioner to pay 1/3rd of the total due amount excluding previously deposited amounts. The petitioner argued that the tribunal did not validly exercise its discretion and failed to consider the financial hardship faced, as the business was closed and unable to generate revenue. The court, after considering the submissions and the financial difficulties presented, provided a conditional relief to the petitioner to facilitate the continuation of the appeal process.

• Counselvise Citation: [2016] 140 COUNSELVISE.COM (IT) 755554 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 17-03-2016
• Assessment Year: misc
• Other Referred Cases: WP(C).NO.15707 OF 2015
• Laws Referred To: Kerala Value Added Tax Act
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: LILLY
• Assessee Lawyers: N NAIR; V K SHAMUSUDHEEN
• Keywords: Appeal on merits; Business closed; Conditional order of stay; Financial hardship
• Section: 7

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR THURSDAY, THE 17TH DAY OF MARCH 2016/27TH PHALGUNA, 1937 WP(C).No. 10185 of 2016 (W) ---------------------------- PETITIONER: ------------------ E.M.IBRAHIM, PROPRIETOR, M/S.SUPER ONE CURRY POWDER, KUNDUKAD, KIZHAKKENCHERRY(PO), ALATHUR, PALAKKAD. BY ADVS.SRI.N.MURALEEDHARAN NAIR SRI.V.K.SHAMUSUDHEEN RESPONDENT(S): -------------------------- 1. THE AGRICULTURAL INCOME TAX AND COMMERCIAL TAX OFFICER, ALATHUR - 678 541. 2. THE KERALA VALUE ADDED TAX ADDITIONAL APPELLATE TRIBUNAL, PALAKKAD - 678 004. 3. THE INSPECTING ASSISTANT COMMISSIONER, DEPARTMENT OF COMMERCIAL TAXES, CHITTUR - 678 104. BY GOVERNMENT PLEADER SMT.LILLY.K.T THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: mbr/ WP(C).No. 10185 of 2016 (W) ---------------------------------------- APPENDIX PETITIONERS’ EXHIBITS: EXT. P1 : TRUE COPY OF THE ASSESSMENT ORDER PASSED BY 1ST RESPONDENT FOR THE YEAR 2009-10 DATED 23.3.2015. EXT. P2 : TRUE COPY OF THE 1ST APPELLATE ORDER PASSED BY ASSISTANT COMMISSIONER (APPEALS), PALAKKAD DATED 30.11.2015. EXT. P3 : TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 5.2.2016. EXT. P4 : TRUE COPY OF THE STAY PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 5.2.2016. EXT. P5 : TRUE COPY OF THE STAY ORDER PASSED BY THE 2ND RESPONDENT DATED 17.2.2016. EXT. P6 : TRUE COPY OF THE JUDGMENT IN WP(C).NO.15707 OF 2015 DATED 28.5.2015. EXT. P7 : TRUE COPY OF THE PAYMENT OF CHALAN NO.340 DATED 15.6.2015. EXT. P8 : TRUE COPY OF THE PAYMENT OF CHALAN NO.85 DATED 15.7.2015. EXT. P9 : TRUE COPY OF THE DEMAND NOTICE UNDER SECTION 7 OF THE REVENUE RECOVERY ACT ISSUED BY 3RD RESPONDENT FOR THE YEAR 2009-10 DATED 28.4.2015. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE mbr/ A.K.JAYASANKARAN NAMBIAR, J. ............................................................. W.P.(C).No.10185 of 2016 ............................................................. Dated this the 17th day of March, 2016 J U D G M E N T The challenge in the writ petition is against Ext.P5 conditional order of stay passed by the 2nd respondent in stay applications filed along with an appeal against an order of the 1st appellate authority under the Kerala Value Added Tax Act. The grievance of the petitioner is essentially that while passing Ext.P5 order, the 2nd respondent Tribunal did not exercise its discretion validly. 2. I have heard the learned counsel for the petitioner and also the learned Government Pleader for the respondents. 3. On a consideration of the facts and circumstances of the case as also the submissions made across the bar and taking note of the grounds of appeal in Ext.P3 appeal memorandum submitted on behalf of the petitioner wherein no grounds have been stated warranting an interference with the impugned order, the 2nd -2- W.P.(C). No.10185 of 2016 respondent Tribunal had no option except to direct the payment of 1/3rd of the total due amount, after excluding the amounts already deposited by the petitioner before the 1st appellate authority. The learned counsel for the petitioner submits that the financial hardship of the petitioner was not taken into account and presently the business is closed and the petitioner is not able to generate any money. Taking note of this financial difficulty urged on behalf of the petitioner, I direct that, if the petitioner pays an amount of Rs.1,00,000/- on or before 30.04.2016, then the same shall be treated as in compliance with the directions in Ext.P5 order and the 2nd respondent shall proceed to consider the appeal on merits. The writ petition is disposed as above. A.K.JAYASANKARAN NAMBIAR JUDGE mns/17.3.16 "