M/S.FLOATELS INDIA (P) LTD V. THE COMMERCIAL TAX OFFICER

WP(C)/23274/2012

AI Insights

The case involves M/S Floatels India (P) Ltd., which challenged the rejection of their refund request for a penalty that was previously cancelled by the appellate authority. The petitioner had initially faced a penalty, which was cancelled, and subsequently sought a refund. However, the refund request was rejected by the Deputy Commissioner (Appeals) on the grounds that the department had filed appeals against the cancellation, which were still pending. The High Court had earlier directed the consideration of the refund application but did not decide on the merits of the case. The current writ petition seeks to quash the order rejecting the refund and to enforce the earlier judgment directing the consideration of the refund application.

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 727046 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 05-10-2012
• Assessment Year: misc
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: SHOBA EAPPEN
• Assessee Lawyers: T M SREEDHARAN; P REJINARK; V P NARAYANAN; DIVYA RAVINDRAN
• Keywords: Appellate Authority; Interim order; Penalty; Refund; Stay

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC FRIDAY, THE 5TH DAY OF OCTOBER 2012/13TH ASWINA 1934 WP(C).No. 23274 of 2012 (H) --------------------------- PETITIONER(S): ------------- M/S.FLOATELS INDIA (P) LTD., FLOATELS CHAMBERS, T.C.NO.16/1859, DPI ROAD JAGATHY THIRUVANANTHAPURAM - 695 014 (REGISTERED OFFICE AT KP 7/911 POZHIYOOR P.O., KULATHUR VILLAGE NEYYATTINKARA TALUK THIRUVANANTHAPURAM - 695 513) - REPRESENTED BY ITS MANAGING DIRECTOR SHRI.M.R.NARAYANAN. BY ADVS.SRI.T.M.SREEDHARAN (SR.) SRI.P.REJINARK SRI.V.P.NARAYANAN SMT.DIVYA RAVINDRAN RESPONDENT(S): -------------- 1. THE COMMERCIAL TAX OFFICER, 1ST CIRCLE, THIRUVANANTHAPURAM - 695 001. 2. THE INTELLIGENCE OFFICER (IB), OFFICE OF THE DY.COMMISSIONER (INT.) DEPARTMENT OF COMMERCIAL TAXES THIRUVANANTHAPURAM - 695 001 3. THE DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES, THIRUVANANTHAPURAM - 695 001. 4. THE COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM - 695 001. BY SR GOVERNMENT PLEADER SMT.SHOBA ANNAMMA EAPPEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05-10-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.23274/12 APPENDIX PETITIONER'S EXHIBITS EXHIBIT P1. TRUE COPY OF THE ORDER DATED 11.11.2011 IN STA NO.2/2011 AND 3/2011 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P2. TRUE COPY OF JUDGMENT DATED 21.05.2012 IN W.P.(C) NO.9299/2012 OF THIS HON'BLE COURT. EXHIBIT P3. TRUE COPY OF THE REPRESENTATION DATED 08.12.2011 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P4. TRUE COPY OF THE ORDER CR NO.64 & 65/06-07/IO(IB)/TVPM DATED 17.07.2012 PASSED BY THE 2ND RESPONDENT. EXHIBIT P5. TRUE COPY OF INTERIM ORDER DATED 05.07.2012 IN TA NO.59/2012 PASSED BY THE KERALA AGRICULTURAL INCOME TAX AND SALES TAX APPELLATE TRIBUNAL, ERNAKULAM FOR THE ASST.YEAR 2003-04. EXHIBIT P5(a). TRUE COPY OF INTERIM ORDER DATED 05.07.2012 IN TA NO.60/2012 PASSED BY THE KERALA AGRICULTURAL INCOME TAX AND SALES TAX APPELLATE TRIBUNAL, ERNAKULAM FOR THE ASST.YEAR 2004-05. //True Copy// PA to Judge Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 23274 OF 2012 =================== Dated this the 5th day of October, 2012 J U D G M E N T According to the petitioner, penalty was levied on them which was challenged before the appellate authority and by Ext.P1 order, the penalty was cancelled. Petitioner thereupon requested for refund of the penalty already remitted and finally in WP(C) No. 9299/12 filed by the petitioner, this Court passed Ext.P2 judgment directing that their application for refund be considered and orders thereon shall be passed. 2. In pursuance to the judgment, Ext.P4 order was passed rejecting the petitioner's request on the ground that it is premature and the reason for such a conclusion is that appeals against Ext.P1 filed by the department before the Tribunal are pending. It is also seen from Exts.P5 and P5(a) that the Tribunal has passed interim orders of stay. It is in these circumstances the writ petition is filed seeking to quash Ext.P4 and to direct the respondents to comply with Ext.P2 judgment. 3. I heard the learned senior counsel for the petitioner who contended that the attempt of the department is to WPC.No.23274 /12 :2 : circumvent the directions of this Court in Ext.P2 judgment. 4. By Ext.P1 order, penalty was cancelled and if that order has become final, necessarily, the petitioner is entitled to refund of the penalty already remitted. However, the department has filed second appeals before the Tribunal as TA Nos.59/12 and 60/12 and the said appeals are pending. There is also interim orders of stay. In such circumstances, at this stage, petitioner cannot seek refund of the amount. 5. Insofar as the directions in Ext.P2 judgment is concerned, as is evident from the judgment itself, this Court did not go into the merits of the contentions raised, but has only directed consideration of the application made by the petitioner for refund. Therefore, that judgment does not decide the rights of the parties to accuse the respondents of having attempted to circumvent any directions of this Court. In such circumstances, at this stage, the only order the petitioner can aspire for is one for an expeditious disposal of the appeals. Therefore, I dispose of this writ petition directing that the Tribunal shall, on the production of a copy of this judgment WPC.No.23274 /12 :3 : dispose of TA Nos.59/12 and 60/12 in accordance with law and as expeditiously as possible at any rate within three months thereafter. ANTONY DOMINIC, JUDGE Rp "