KAVUMKAL GRANITES (PVT) LTD V. AGRICULTURAL INCOME TAX & COMMERCIAL TAX OFFICER

WP(C)/1176/2017

AI Insights

Kavumkal Granites (Pvt) Ltd. filed a writ petition challenging the assessment and penalty orders issued by the tax authorities for the years 2010-2011 to 2013-2014. The petitioner contested the conditional stay imposed by the first appellate authority, which required the remittance of 40% of the demanded tax and interest. The High Court of Kerala examined the assessment orders and the petitioner's compliance with the Pollution Control Board regarding machinery usage. The court upheld the conditional stay but modified the terms, allowing a statutory stay if 20% of the disputed tax is paid promptly. The court also directed a timely review of the stay application concerning the penalty orders.

• Counselvise Citation: [2017] 140 COUNSELVISE.COM (IT) 769233 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 12-01-2017
• Assessment Year: misc
• Laws Referred To: Section 55 of the relevant tax legislation
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: V K SHAMSUDHEEN
• Assessee Lawyers: K N SREEKUMARAN; V P SEENA DEVI
• Keywords: Appeal; Assessment Order; Conditional stay; Penalty order; Revision; Tax demand
• Section: 55

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN THURSDAY, THE 12TH DAY OF JANUARY 2017/22ND POUSHA, 1938 WP(C).No. 1176 of 2017 (V) ---------------------------------------- PETITIONER(S) : -------------------------- KAVUMKAL GRANITES (PVT) LTD., MALAYALAPPUZHA EROM (P.O), VADASSERIKKARA, PATHANAMTHITTA DISTRICT, PIN - 689 662, (REPRESENTED BY SRI.SABU KURIAKOSE, MANAGING DIRECTOR). BY ADVS. SRI.K.N.SREEKUMARAN SMT.V.P.SEENA DEVI RESPONDENT(S) : ---------------------------- 1. AGRICULTURAL INCOME TAX & COMMERCIAL TAX OFFICER, RANNI, PATHANAMTHITTA, PIN - 689 662. 2. DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES, KOLLAM - 691 001. 3. DEPUTY COMMISSIONER, COMMERCIAL TAXES, PATHANAMTHITTA, PIN - 689 662. 4. DEPUTY TAHSILDAR (RR), TALUK OFFICE, RANNI, PATHANAMTHITTA, PIN - 689 672. BY GOVERNMENT PLEADER SRI. V.K.SHAMSUDHEEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Msd. WP(C).No. 1176 of 2017 (V) ----------------------------------------- APPENDIX PETITIONER(S)' EXHIBITS : EXHIBIT P1. TRUE COPY OF THE ASSESSMENT ORDER BEARING NO.32030962683 DATED 25.08.2016 FOR 2010-11 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P2. TRUE COPY OF THE ASSESSMENT ORDER BEARING NO.32030962683 DATED 25.08.2016 FOR 2011-12 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P3. TRUE COPY OF THE ASSESSMENT ORDER BEARING NO.32030962683 DATED 25.08.2016 FOR 2012-13 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P4. TRUE COPY OF THE ASSESSMENT ORDER BEARING NO.32030962683 DATED 25.08.2016 FOR 2013-14 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P5. TRUE COPY OF THE PENALTY ORDER BEARING NO.32030962683 DATED 25.08.2016 FOR 2010-11 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P6. TRUE COPY OF THE PENALTY ORDER BEARING NO.32030962683 DATED 25.08.2016 FOR 2011-12 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P7. TRUE COPY OF THE PENALTY ORDER BEARING NO.32030962683 DATED 25.08.2016 FOR 2012-13 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P8. TRUE COPY OF THE PENALTY ORDER BEARING NO.32030962683 DATED 25.08.2016 FOR 2013-14 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P9. TRUE COPY OF THE APPEAL AGAINST ASSESSMENT FOR 2010-11 FILED ON 07.10.2016 BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P9(A). TRUE COPY OF THE STAY PETITION FOR 2010-11 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P10. TRUE COPY OF THE APPEAL AGAINST ASSESSMENT FOR 2011-12 FILED ON 07.10.2016 BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P10(A). TRUE COPY OF THE STA Y PETITION FOR 2011-12 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P11. TRUE COPY OF THE APPEAL AGAINST ASSESSMENT FOR 2012-13 FILED ON 07.10.2016 BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P11(A). TRUE COPY OF THE STA Y PETITION FOR 2012-13 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. WP(C).No. 1176 of 2017 (V) ----------------------------------------- EXHIBIT P12. TRUE COPY OF THE APPEAL AGAINST ASSESSMENT FOR 2013-14 FILED ON 07.10.2016 BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P12(A). TRUE COPY OF THE STA Y PETITION FOR 2013-14 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P13. TRUE COPY OF THE REVISIONS DATED 07.10.2016 AGAINST PENALTY FOR 2010-11 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXHIBIT P13(A). TRUE COPY OF THE STA Y PETITION AGAINST PENALTY FOR 2010-11 FILED BY THE PETITIONER TO THE 3RD RESPONDENT. EXHIBIT P14. TRUE COPY OF THE REVISIONS DATED 07.10.2016 AGAINST PENALTY FOR 2011-12 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXHIBIT P14(A). TRUE COPY OF THE STA Y PETITION AGAINST PENALTY FOR 2011-12 FILED BY THE PETITIONER TO THE 3RD RESPONDENT. EXHIBIT P15. TRUE COPY OF THE REVISIONS DATED 07.10.2016 AGAINST PENALTY FOR 2012-13 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXHIBIT P15(A). TRUE COPY OF THE STA Y PETITION AGAINST PENALTY FOR 2012-13 FILED BY THE PETITIONER TO THE 3RD RESPONDENT. EXHIBIT P16. TRUE COPY OF THE REVISIONS DATED 07.10.2016 AGAINST PENALTY FOR 2013-14 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXHIBIT P16(A). TRUE COPY OF THE STA Y PETITION AGAINST PENALTY FOR 2013-14 FILED BY THE PETITIONER TO THE 3RD RESPONDENT. EXHIBIT P17. TRUE COPY OF THE COMMON DEMAND NOTICE IN FORM 1 BEARING NO. TALUK FILE NO.2016/732/3/400 DATED 18.11.2016 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P18. TRUE COPY OF THE COMMON STA Y ORDER DATED 15.12.2016 IN KVAT A(PTA) 307/16, 308/16, 309/16 & 310/16 ISSUED BY THE 3RD RESPONDENT. RESPONDENT(S)' EXHIBITS : NIL //TRUE COPY// P.A.TO JUDGE. Msd. K. VINOD CHANDRAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P(C) No. 1176 of 2017 V - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of January, 2017 J U D G M E N T The petitioner is aggrieved with the assessment order issued by the Assessing Officer and penalty orders subsequently issued. The appeals and revisions were filed against the assessment orders and penalty orders passed for the years 2010-2011 to 2013 - 14. In the writ petition, the order of conditional stay passed as Ext.P18, in the appeals, against the assessment and the recovery threatened on the basis of the penalty orders are challenged. 2. The first appellate authority on a prima facie consideration found that the appellant has to remit 40% of the balance tax and interest demanded for the subject years. This Court has also been invited to go through the assessment orders which indicate that the petitioner had applied for WPC.No.1176/2017 : 2 : compounding with three machineries, while the petitioner himself had obtained consent from the Pollution Control Board for about 7 machineries. The petitioner's contention is that the other machineries were not working. If that be so, there is no reason why the petitioner should have applied for consent renewal with respect to the said machineries from the Pollution Control Board. 3. It is on the basis of the information gathered from the other Departments, the Assessing Officer proceeded to assess the petitioner for the suppression effected and also impose penalty for the alleged offences. This Court does not find any reason to interfere with Ext.P18 which found the appellant entitled only to a conditional stay order. 4. However, with respect to the condition imposed, it is to be noticed that the proviso to subsection(4) of Section55 speaks of an option to be exercised by the appellant in paying 20% of the disputed tax along with collected tax, upon which there is a blanket stay statutorily granted. In such WPC.No.1176/2017 : 3 : circumstance, if the appellant pays 20% of the tax demanded within a period of two months from the date of receipt of a certified copy of this judgment, for all the years, Ext.P18 shall stand set aside and the recovery would be kept in abeyance till disposal of the appeal. If not the demand would be enforced by appropriate recovery proceedings. 5. As to the revisions filed against the penalty orders there shall be a direction to the revisional authority to consider the stay application within a period of two months, during which period, the recovery shall be kept in abeyance and subsequently the recovery shall be governed by the order passed by the revisional authority. Writ petition is disposed of with the above observations. Sd/- (K. VINOD CHANDRAN, JUDGE) jma //true copy// P.A to Judge "