M/S. FEBIN MARINE FOODS V. AGRICULTURAL INCOME TAX & COMMERCIAL TAX OFFICER

WP(C)/36492/2016

AI Insights

The case involves M/s. Febin Marine Foods, represented by its manager S.S. Navas, who filed a writ petition against the Agricultural Income Tax & Commercial Tax Officer and other respondents concerning a penalty order and security deposit demand under the KVAT Act. The petitioner had previously filed an appeal and a stay application against the penalty order with the Deputy Commissioner (Appeals), which was still pending. The petitioner sought the High Court's intervention to stay the recovery actions by the respondent authorities during the pendency of the appeal. The court's decision focused on ensuring that the appellate authority could consider the stay application without the pressure of ongoing recovery actions.

• Counselvise Citation: [2016] 140 COUNSELVISE.COM (IT) 767680 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 14-11-2016
• Assessment Year: misc
• Laws Referred To: KVAT Act
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: V K SHAMSUDHEEN
• Assessee Lawyers: V NARASIMHAM; P H RIYAS
• Keywords: Bank guarantee; Penalty order; Security Deposit; Tax Invoice; Way-bill
• Section: 47(2); 47(5)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE MONDAY, THE 14TH DAY OF NOVEMBER 2016/23RD KARTHIKA, 1938 WP(C).No. 36492 of 2016 (J) ---------------------------- PETITIONER: ----------- M/S.FEBIN MARINE FOODS, ERAMALLOOR, CHERTHALA, ALAPPUZHA- 688537, REPRESENTED BY ITS MANAGER S.S. NAVAS BY ADVS.SRI.V.DEVANANDA NARASIMHAM SRI.P.H.RIYAS RESPONDENT(S): -------------- 1. AGRICULTURAL INCOME TAX & COMMERCIAL TAX OFFICER, COMMERCIAL TAXES, KUTHIYATHODU, ALAPPUZHA- 688533. 2. THE INTELLIGENCE OFFICER, SQUAD NO.III, CIVIL STATION ANNEX, COMMERCIAL TAXES, ALAPPUZHA- 688001. 3. THE DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES, ASRAMAM (PO), KOLLAM - 691012. 4. THE BRANCH MANAGER, FEDERAL BANK LIMITED, BYPASS, ALUVA- 683101. R1 TO R3 BY GOVERNMENT PLEADER SRI.V.K.SHAMSUDHEEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: mbr/ WP(C).No. 36492 of 2016 (J) ---------------------------- APPENDIX PETITIONER(S)' EXHIBITS: ----------------------- EXHIBIT P1 : TRUE COPY OF THE TAX INVOICE DATED 12.09.2015 ISSUED FOR 700 BOX RAW PRAWNS FROM THE BRANCH OFFICE TO THE PETITIONER. EXHIBIT P2 : TRUE COPY OF THE WAY BILL E -GENERATED ON 12.09.2015 IN SUPPORT OF EXT P1 INVOICE ACCOMPANIED WITH THE CONSIGNMENT. EXHIBIT P3 : TRUE COPY OF THE 17A NOTICE DATED 15.09.2015 ISSUED U/S. 47(2) OF THE KVAT ACT OF THE COMMERCIAL TAX INSPECTOR, WALAYAR CHECK POST DEMANDING SECURITY DEPOSIT FROM PETITIONER. EXHIBIT P4 : A TRUE COPY OF THE SUCH LETTER DATED 06.09.2016 ISSUED BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT AND TO THE PETITIONER. EXHIBIT P5 : TRUE COPY OF THE PENALTY ORDER DATED 08.09.2016 PASSED U/S. 47(5) OF THE KVAT ACT FOR THE YEAR 2015-16 BY THE 2ND RESPONDENT. EXHIBIT P6 : TRUE COPY OF THE LETTER DATED 08.09.2016 ISSUED BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT AND THE PETITIONER. EXHIBIT P7 : TRUE COPY OF THE APPEAL MEMORANDUM CHALLENGING EXBT P5 PENALTY ORDER FOR THE YEAR 2015-16 FILED BY THE PETITIONER BEFORE 3RD RESPONDENT. EXHIBIT P8 : TRUE COPY OF THE INTERLOCUTORY APPLICATION FOR STAY DATED 09.11.2016 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT AGAINST ENCASHMENT OF BANK GUARANTEE. RESPONDENT(S)' EXHIBITS: NIL ----------------------- //TRUE COPY// P.S. TO JUDGE mbr/ A.M. SHAFFIQUE, J. ------------------------------------- W.P.(C) No.36492 of 2016 -------------------------------------- Dated this the 14th day of November, 2016 JUDGMENT Petitioner has filed Ext.P7 appeal before the 3rd respondent and along with the appeal, petitioner has also filed Ext.P8, an application for stay. It is submitted that during the pendency of the appeal, steps are being taken by the respondent authorities for recovering the amount in terms of Ext.P3. 2. Having regard to the fact that an appeal is pending before the competent authority, I do not think it necessary to consider the matter on merits. Suffice to say that the appellate authority has to consider the stay application on merits within a specified time and in the meantime, the recovery can be kept in abeyance. Accordingly, this writ petition is disposed of as under: (i) The 3rd respondent shall consider the stay petition filed along with the appeal within a period of one month from W.P.(C) No.36492 of 2016 -2- the date of receipt of a copy of the judgment. (ii) In the meantime, the demand made in terms of Ext.P3 shall be kept in abeyance (iii) The respondent Bank shall keep in abeyance the payment of the amount covered by the bank guarantee, which shall be subject to the final orders passed by the appellate authority. Sd/- A.M. SHAFFIQUE JUDGE Scl/14.11.2016 "