KAVUMKAL GRANITES (P) LTD V. THE AGRICULTURAL INCOME TAX AND COMMERCIAL TAX OFFICER

WP(C)/13964/2016

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Kavumkal Granites (Pvt) Ltd., represented by its managing director Sabu Kuriakose, filed a writ petition against the conditional stay order imposed by the Deputy Commissioner (Appeals), Commercial Taxes, Kollam. The petitioner contested the requirement to deposit 40% of the assessed amount as a condition for the stay on recovery of dues confirmed by an earlier assessment order. The High Court found that the Deputy Commissioner had not provided reasons for this condition, which is mandatory as per the precedent set in Archana Agencies v. Commercial Tax Officer. The court quashed the Deputy Commissioner's order and remanded the matter for a fresh decision with reasons, while also staying the recovery process in the interim.

• Counselvise Citation: [2016] 140 COUNSELVISE.COM (IT) 766919 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 07-04-2016
• Assessment Year: misc
• Other Referred Cases: Archana Agencies v. Commercial Tax Officer [2014(2) KLT 715]
• Laws Referred To: Kerala Value Added Tax Act, 2003
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: LILLY K T
• Assessee Lawyers: PHILIP VETTICKATTU; VINEETH KURIAKOSE
• Keywords: Assessment Order; Conditional stay; Discretion; Recovery Steps; Stay Petition
• Section: 143(3)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR THURSDAY, THE 7TH DAY OF APRIL 2016/18TH CHAITHRA, 1938 WP(C).No. 13964 of 2016 (U) ---------------------------- PETITIONER: ----------- KAVUMKAL GRANITES (PVT) LTD., MUKKUZHY, MALAYALAPUZHA ERAM.P.O., PATHANAMTHITTA - 680 664, REPRESENTED BY ITS MANAGING DIRECTOR, SABU KURIAKOSE. BY ADVS. SRI.PHILIP J.VETTICKATTU SRI.VINEETH KURIAKOSE RESPONDENT(S): -------------- 1. THE AGRICULTURAL INCOME TAX & COMMERCIAL TAX OFFICER, RANNY - 689 672. 2.THE DEPUTY COMMISSIONER(APPEALS), COMMERCIAL TAXES, KOLLAM - 681 002. 3.THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY (TAXES DEPARTMENT), SECRETARIAT, THIRUVANANTHAPURAM - 695 001. BY GOVERNMENT PLEADER SMT.LILLY.K.T THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07-04-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: mbr/ WP(C).No. 13964 of 2016 (U) --------------------------- APPENDIX PETITIONER(S)' EXHIBITS: ----------------------- EXT. P1 : TRUE COPY OF NOTICE DATED 30.3.3015 ISSUED BY THE 1ST RESPONDENT. EXT. P2 : TRUE COPY OF REPLY DATED 30.4.2015 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT. P3 : TRUE COPY OF ORDER DATED 30.6.2015 ALONG WITH DEMAND NOTICE. EXT. P4 : TRUE COPY OF APPEAL AND STAY PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT. P5 : TRUE COPY OF ORDER PASSED BY THE APPELLATE AUTHORITY DATED 20.2.2016 IMPOSING 40%. RESPONDENT(S)' EXHIBITS: NIL ----------------------- //TRUE COPY// P.S. TO JUDGE mbr/ A.K.JAYASANKARAN NAMBIAR, J. =========================================== W.P.(C). No. 13964 of 2016 ===================================================== Dated this the 7th day of April, 2016 JUDGMENT The petitioner is an assessee under the Kerala Value Added Tax Act, 2003. Against Ext.P3 assessment order, the petitioner had preferred Ext.P4 appeal before the 2nd respondent. Along with the appeal, the petitioner had also preferred a stay petition. The 2nd respondent has now passed Ext.P5 order directing the petitioner to pay 40% of the amount as a condition for the grant of stay against recovery of the balance amounts confirmed against the petitioner vide the assessment order. 2. In the writ petition, the petitioner impugns the said conditional orders of stay, inter alia, on the ground that the 2nd respondent had not exercised his discretion validly while passing the said order. 3. I have heard the learned counsel appearing for the petitioner as also the learned Government Pleader appearing for the respondents. 4. On a consideration of the facts and circumstances of the -2- W.P.(C). No. 13964 of 2016 case and the submissions made across the bar, I dispose the writ petition with the following directions:- (i) In Ext.P5 order, the 2nd respondent does not state reasons as to why the petitioner was required to deposit the amounts as a condition for the grant of stay. This Court has held in Archana Agencies v. Commercial Tax Officer [2014(2) KLT 715] that an authority considering a stay petition is bound to give reasons even while granting conditional stay. (ii) Ext.P5 order is quashed and the 2nd respondent is directed to reconsider the matter and pass fresh orders in the stay petitions filed by the petitioner, within one month from the date of receipt of a copy of this judgment after affording an opportunity of hearing to the petitioner. (iii) Recovery steps, initiated against the petitioner shall be kept in abeyance till such time as fresh orders are passed by the 2nd respondent, as directed above, and communicated to the petitioner. Sd/- A.K.JAYASANKARAN NAMBIAR JUDGE das /07.04.2016 "