MERCY JOHN V. THE AGRICULTURAL INCOME TAX & COMMERCIAL TAX OFFICER

WP(C)/28220/2015

AI Insights

The case involves Mercy John, the proprietrix of M/s. Matha Coir Webbing Industries, who contested a conditional stay order issued by the Deputy Commissioner (Appeals), Commercial Taxes, regarding an assessment order under the Kerala Value Added Tax Act, 2003 for the year 2005-2006. The petitioner had appealed against the assessment order and filed several petitions including for a stay on the recovery of the assessed tax. The Deputy Commissioner granted a conditional stay requiring a 30% deposit of the assessed amount. The petitioner challenged this decision in the High Court, arguing that the Deputy Commissioner did not validly exercise discretion in imposing such a condition.

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 699560 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 17-09-2015
• 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: LIJU STEPHEN
• Assessee Lawyers: A KRISHNAN
• Keywords: Assessment Order; Conditional stay; Delay condonation; Revision order; Revision order; Stay Petition
• Section: 2005-06

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR THURSDAY, THE 17TH DAY OF SEPTEMBER 2015/26TH BHADRA, 1937 WP(C).No. 28220 of 2015 (R) ----------------------------------------- PETITIONER(S): -------------------------- MERCY JOHN AGED 41 YEARS PROPRIETRIX, M/S. MATHA COIR WEBBIING INDUSTRIES CANAL WARD, ALAPPUZHA - BY ADV. SRI.A.KRISHNAN RESPONDENT(S): ---------------------------- 1. THE AGRICULTURAL INCOME TAX & COMMERCIAL TAX OFFICER COLECTORATE, ALAPPUZHA - 688 001 2. DEPUTY COMMISSIONER (APPEALS) COMMERCIAL TAXES, BAPPUJI NAGAR, ASRAAMA, KOLLAM - 691 002 3. THE DEPUTY COMMISSIONER, COMMERCIAL TAXES ALAPPUZHA - 688 001 4. THE STATE OF KERALA REPRESENTED BY THE SECRETARY, COMMERCIAL TAXES DEPARTMENT THIRUVANANTHAPURAM - 695 001 R BY GOVERNMENT PLEADER, SRI. LIJU V. STEPHEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17-09-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 28220 of 2015 (R) ----------------------------------------- APPENDIX PETITIONER'S EXHIBITS:- ------------------------------------------ EXT.P1 TRUE COPY OF THE ASSESSMENT ORDER DATED 13.02.2015 FOR 2005-06. EXT.P2 TRUE COPY OF THE DEMAND NOTICE DATED 13.02.2015. EXT.P3 TRUE COPY OF THE APPEAL DATED 30.05.2015 FILED BEFORE THE 2ND RESPONDENT EXT.P4 TRUE COPY OF THE STAY PETITION DATED 30.05.2015 FILED BEFORE THE 2ND RESPONDENT. EXT.P5 TRUE COPY OF THE DELAY CONDONATION PETITION DATED 30.05.2015 FILED BEFORE THE 2ND RESPNODENT. EXT.P6 TRUE COPY OF THE EARLY HEARING PETITION DATED 30.05.2015 FILED BEFORE THE 2ND RESPONDENT. EXT.P7 TRUE COPY OF THE ORDER IN APPEAL DATED 14.12.2009 PASSED BY THE 2ND RESPONDENT. EXT.P7(a) TRUE COPY OF THE REVISED ASSESSMENT ORDER DATED 07.12.2010 PASSED BY THE 1ST RESPONDENT. EXT.P8 TRUE COPY OF THE ORDER IN SUO MOTO REVISION DATED 30.06.2014 PASSED BY THE 3RD RESPONDENT. EXT.P9 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 05.11.2014 IN WP(C) No.28283 OF 2014 (I) EXT.P10 TRUE COPY OF THE STAY ORDER IN EXT.P4 DATED 11.08.2015 PASSED BY THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS:- ----------------------------------------- NIL // True copy // PA to Judge das A.K.JAYASANKARAN NAMBIAR, J. =========================================== W.P.(C). No. 28220 of 2015 ===================================================== Dated this the 17th day of September, 2015 JUDGMENT The petitioner is an assessee under the Kerala Value Added Tax Act, 2003. Against Ext.P1 assessment order for the assessment year 2005-2006, the petitioner had preferred Ext.P3appeal before the 2nd respondent. Along with the appeal, the petitioner had also preferred Ext.P4 stay petition and Ext.P5 delay condonation petition. The 2nd respondent has now passed Ext.P10 order directing the petitioner to pay 30% 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. The petitioner also seeks permission to prefer an appeal against Ext.P8 Revision order on the ground of limitation. 3. I have heard the learned counsel appearing for the petitioner as also the learned Government Pleader appearing for the respondents. -2- W.P.(C). No. 28220 of 2015 4. On a consideration of the facts and circumstances of the case and the submissions made across the bar, I dispose the writ petition with the following directions:- (i) In Ext.P10 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.P10 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. (iv) The prayer of the petitioner for permission to file an appeal against Ext.P8 Revision order for -3- W.P.(C). No. 28220 of 2015 raising a plea of limitation is rejected taking note of subsequent events that took place as detailed in the writ petition. Sd/- A.K.JAYASANKARAN NAMBIAR JUDGE das "