MAS MAKE POLYMERS V. COMMERCIAL TAX OFFICER

OP (TAX)/21/2021

AI Insights

The case involves M/S. Mas Make Polymers, the petitioner, who challenged the requirement imposed by the Kerala Value Added Tax/Agril. Income Tax and Sales Tax Appellate Tribunal (the Tribunal) to furnish a security bond in Form 6A as a condition for stay of recovery of a confirmed tax demand pending the disposal of an appeal. The Tribunal had found that the petitioner made out a prima facie and arguable case and that continuing recovery proceedings would cause irreparable loss and hardship to the petitioner. Despite these findings, the Tribunal required a security bond, which the petitioner contested in this original petition.

• Counselvise Citation: [2021] 140 COUNSELVISE.COM (IT) 732721 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 21-12-2021
• Assessment Year: misc
• Laws Referred To: Kerala Value Added Tax Act
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: S V M SHAMSUDHEEN
• Assessee Lawyers: S KUMAR; SABU; M RAJAGOPAL; RAHUL APARNA
• Keywords: Disputed Demand; Security Bond; Stay of recovery; Irreparable loss and hardship
• Section: 6A

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR & THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. TUESDAY, THE 21ST DAY OF DECEMBER 2021 / 30TH AGRAHAYANA, 1943 OP (TAX) NO. 21 OF 2021 AGAINST THE ORDER IN TAVAT 67/2021 OF S ALES TAX APPELLATE TRIBUNAL,ADDITIONAL BENCH,KOZHIKODE. PETITIONER/APPELLANT: M/S.MAS MAKE POLYMERS VELLALACHIPOTTA, ELAPPULLI, EDUPPUKULAM P.O., PALAKKAD, REPRESENTED BY ITS MANAGING PARTNER K.P.ABDUL SALEEM. BY ADVS. S.ANIL KUMAR (TRIVANDRUM) SABU C.J M.RAJAGOPAL RAHUL A. APARNA ANIL RESPONDENTS: 1 COMMERCIAL TAX OFFICER COMMERCIAL TAXES (NOW RENAMED AS STATE GST DEPARTMENT, GST COMPLEX), NEAR CIVIL STATION, PALAKKAD, PIN- 678 001. 2 THE ASST. COMMISSIONER (APPEALS) STATE GST DEPARTMENT, GST COMPLEX, NEAR CIVIL STATION, PALAKKAD, PIN - 678 001. 3 THE KERALA VALUE ADDED TAX/AGRIL. INCOME TAX AND SALES TAX APPELLATE TRIBUNAL ADDL. BENCH, CHEROOTTY ROAD, KOZHIKODE - 673 001, REPRESENTED BY ITS ASST. SECRETARY. BY SR GP SRI.SV.M SHAMSUDHEEN THIS OP TAX HAVING COME UP FOR ADMISSION ON 21.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(Tax) 21 of 2021 2 J U D G M E N T A.K.Jayasankaran Nambiar, J. The O.P.(Tax) has been filed impugning Exts.P5 to P5(b) orders to the extent they require the petitioner to furnish a security bond in Form 6A for the disputed demand as condition for stay of recovery of the confirmed amount till the disposal of the appeal before the appellate Tribunal . 2. We heard Sri.S.Anil Kumar, the the learned counsel for the petitioner and Sri.V.H.Shamsudheen, the learned Senior Government Pleader for the respondents. 3. On a consideration of the facts and circumstances of the case and also the rival submissions made, we find that in the orders impugned in this original petition, the Tribunal clearly records that the petitioner had made out a prima facie and arguable case in the appeal and further that if recovery proceedings were continued during the pendency of the appeal, the petitioner would be put to irreparable loss and hardship. We would have thought that the satisfaction of the Tribunal on the said two aspects would have sufficed for the Tribunal to grant an unconditional stay of recovery of the balance amount pending disposal of the appeal. OP(Tax) 21 of 2021 3 The Tribunal, however, directed the petitioner to furnish a security bond in form 6A for the disputed demand as a condition for the grant of stay. The security bond in Form 6A requires the petitioner to pledge his immovable property as security for the disputed demand pending disposal of the appeal, and also identify two solvent sureties. We feel that in the light of the specific finding of the Tribunal as recorded in the earlier portion of their order the condition requiring the furnishing of a security bond is an onerous and unnecessary one. Accordingly, we modify the condition in Exts.P5 to P5(b) orders by directing that if the petitioner furnishes a simple bond without sureties for the disputed amounts, the same shall be treated as in compliance with the directions in Exts.P5 to P5(b) orders of the Tribunal and the Tribunal shall proceed to hear the appeals on merits in their turn. The original petition(Tax) is allowed as above. Sd/- A.K.JAYASANKARAN NAMBIAR JUDGE Sd/- MOHAMMED NIAS C.P JUDGE dlk/21/12/ OP(Tax) 21 of 2021 4 APPENDIX OF OP (TAX) 21/2021 PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE ASSESSMENT ORDER DATED 27/05/2016 ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2010-2011. Exhibit P1A TRUE COPY OF THE ASSESSMENT ORDER DATED 27/05/2016 ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2011-2012. Exhibit P1B TRUE COPY OF THE ASSESSMENT ORDER DATED 27/05/2016 ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2012-2013. Exhibit P2 TRUE COPY OF APPELLATE ORDER DATED 21/11/2019 ISSUED BY THE 2ND RESPONDENT IN RESPECT OF EXT.P1. Exhibit P2A TRUE COPY OF APPELLATE ORDER DATED 21/11/2019 ISSUED BY THE 2ND RESPONDENT IN RESPECT OF EXT.P1(A). Exhibit P2B TRUE COPY OF APPELLATE ORDER DATED 21/11/2019 ISSUED BY THE 2ND RESPONDENT IN RESPECT OF EXT.P1(B). Exhibit P3 TRUE COPY OF THE APPEAL MEMORANDUM FILED AGAINST EXT.P2 BEFORE THE 3RD RESPONDENT. Exhibit P3A TRUE COPY OF THE APPEAL MEMORANDUM FILED AGAINST EXT.P29(A) BEFORE THE 3RD RESPONDENT. Exhibit P3B TRUE COPY OF THE APPEAL MEMORANDUM FILED AGAINST EXT.P2(B) BEFORE THE 3RD RESPONDENT. Exhibit P4 TRUE COPY OF THE APPLICATION FOR STAY FILED IN EXT.P3 APPEAL. Exhibit P4A TRUE COPY OF THE APPLICATION FOR STAY FILED IN EXT.P3(A) APPEAL. Exhibit P4B TRUE COPY OF THE APPLICATION FOR STAY FILED IN EXT.P3(B) APPEAL. Exhibit P5 TRUE COPY OF STAY ORDER DATED 4/10/2021 OP(Tax) 21 of 2021 5 ISSUED BY THE 3RD RESPONDENT ON EXT.P4. Exhibit P5A TRUE COPY OF STAY ORDER DATED 27/10/2021 ISSUED BY THE 3RD RESPONDENT ON EXT.P4(A). Exhibit P5B TRUE COPY OF STAY ORDER DATED 27/10/2021 ISSUED BY THE 3RD RESPONDENT ON EXT.P4(B). Exhibit P6 TRUE COPY OF THE CHALAN DATED 07/12/2021 FOR RS.56030/- BEING 30% DEMAND AS PER EXT.P1. Exhibit P7 TRUE COPY OF ORDER DATED 19/11/2011 OF THE HON'BLE COURT IN R.P.NO.815 OF 2011 AGAINST THE JUDGMENT IN W.A.708/2011 DATED 7/06/11. Exhibit P8 TRUE COPY OF JUDGMENT DATED 16/02/2013 IN WP(C) NO.3900 OF 2012 OF THIS HON'BLE COURT. "