MOHAMMED SHAFI V. COMMERCIAL TAX OFFICER

WP(C)/25830/2014

AI Insights

The case involves Mohammed Shafi, the proprietor of M/S. Gents World, who challenged a conditional stay order issued by the Assistant Commissioner (Appeals) regarding a tax assessment dispute. The original order required the petitioner to deposit 30% of the demanded tax for a stay on further proceedings, which the petitioner contested, citing that the authority did not consider the merits of the case. The court referenced judgments from the Supreme Court to emphasize that the appellate authority must consider the petitioner's contentions before issuing interim directions. After reviewing the circumstances, the court decided to modify the stay conditions, reducing the deposit requirement to 20% of the outstanding amount.

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 693846 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 07-10-2014
• Assessment Year: misc
• Other Referred Cases: Alok Spices v. Deputy Commissioner (Appeals), Sales Tax & Agricultural Income- Tax, Ernakulam and Another [Vol. 71 (1988) STC 347], Ravi Gupta v. Commissioner of Sales Tax, Delhi and Another [(2009) 22 VST 529 (SC)]
• Laws Referred To: KVAT Act
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: SHOBHA EAPEN
• Assessee Lawyers: TOMSON EMMANUEL
• Keywords: Assessment Order; Conditional stay; Interlocutory Application; Stay of Proceedings; Turnover Suppression
• Section: 2556

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE TUESDAY, THE 7TH DAY OF OCTOBER 2014/15TH ASWINA, 1936 WP(C).No. 25830 of 2014 (C) ---------------------------- PETITIONER(S): -------------------------- MOHAMMED SHAFI, PROPRIETOR, M/S.GENTS WORLD, CC 40/2817C, PO LINK ROAD, BROADWAY, COCHIN-682 031. BY ADV. SRI.TOMSON T.EMMANUEL RESPONDENT(S): ---------------------------- 1. COMMERCIAL TAX OFFICER COMMERCIAL TAXES, 3RD CIRCLE, COCHIN-682 018. 2. INTELLIGENCE OFFICER SQUAD NO.II, COMMERCIAL TAXES, SALES TAX COMPLEX THEVARA, COCHIN-682 015. 3. ASSISTANT COMMISSIONER (APPEALS) COMMERCIAL TAXES, THEVARA, COCHIN-682 015. 4. THE INSPECTING ASSITANT COMMISSIONER COMMERCIAL TAXES, KAKKANAD, COCHIN-682 030. BY SR. GOVERNMENT PLEADER SMT.SHOBHA ANNAMMA EAPEN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07-10-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 25830 of 2014 (C) ---------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXHIBIT-P1: COPY OF REGISTRATION CERTIFICATE ISSUED BY THE 1ST RESPONDENT AS A PRESUMPTIVE TAX DEALER. EXHIBIT-P2: COPY OF RECEIPT NO.379315 DATED 09.11.2012 ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT, IN COLLECTING COMPOUNDING FEE AS WELL AS TAX FOR 2012-13. EXHIBIT-P3: COPY OF APPLICATION FOR CONVERSION OF A PIN DEALER TO TIN DEALER UNDER THE KVAT ACT SUBMITTED BEFORE THE 1ST RESPONDENT. EXHIBIT-P4: COPY OF TIN REGISTRATION CERTIFICATE ISSUED TO THE PETITIONER BY THE 1ST RESPONDENT. EXHIBIT-P5: COPY OF PRE-ASSESSMENT NOTICE DATED 06.05.2014 FOR THE YEAR 2012-13 ISSUED TO THE PETITIONER BY THE 1ST RESPONDENT. EXHIBIT-P6: COPY OF REPLY SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT, AGAINST EXT.P5 NOTICE. EXHIBIT-P7: COPY OF PRE-ASSESSMENT NOTICE DATED 14.08.2014 FOR THE YEAR 12-13, ISSUED TO THE PETITIONER BY THE 1ST RESPONDENT. EXHIBIT-P8: COPY OF CERTIFIED COPY OF ASSESSMENT ORDER DATED 30.05.2014 ISSUED TO THE PETITIONER, BY THE 1ST RESPONDENT. EXHIBIT-P9: COPY OF STATUTORY APPEAL DATED 04.09.2014 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT, AGAINST EXT P8 ORDER. EXHIBIT-P10: COPY OF INTERLOCUTORY APPLICATION DATED 04.09.2014 FOR STAY SUBMITTED BY THE PETITIONER, ALONG WITH EXT P9 APPEAL. EXHIBIT-P11: COPY OF INTERLOCUTORY APPLICATION DATED 04.09.2014 FOR EARLY HEARING OF THE APPEAL SUBMITTED BY THE PETITIONER, ALONG WITH EXT P9 APPEAL. EXHIBIT-P12: COPY OF CONDITIONAL STAY ORDER ISSUED TO THE PETITIONER BY THE 3RD RESPONDENT. RESPONDENT(S)' EXHIBITS NIL --------------------------------------- /TRUE COPY/ P.A. TO JUDGE VPV A.M.SHAFFIQUE, J. =-=-=-=-=-=-=-=-=-=-=-=-=-= W.P.(C)No.25830 of 2014 =-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 7th day of October, 2014 JUDGMENT The petitioner challenges Ext.P12 conditional order passed by the Assistant Commissioner (Appeals) in KVATA No.2556/2014. The petitioner had filed an application for stay of further proceedings pursuant to the demand made. The authority had stayed the impugned demand on condition of the appellant remitting 30% of the outstanding amount demanded and on furnishing security for the balance amount to the satisfaction of the assessing authority. 2. The learned counsel appearing for the appellant challenges the aforesaid conditional stay on the ground that the authority has not verified the respective contentions of the parties. He relies upon the judgment of the Supreme Court in Alok Spices v. Deputy Commissioner (Appeals), Sales Tax & Agricultural Income- Tax, Ernakulam and Another [Vol. 71 (1988) STC 347] and Ravi Gupta v. Commissioner of Sales Tax, Delhi and Another [(2009) 22 VST 529 (SC)] for the proposition that the appellate authority is bound to consider the contentions of the petitioner while W.P.(C)No.25830 of 2014 2 passing interim directions. The proposition aforesaid is undoubted. In the case on hand, perusal of the assessment order would show that the assessment was completed by making certain additions to the turnover conceded on the basis of suppression detected by the intelligence wing. The total turnover fixed is Rs.73,58,358/- against the reported turnover of Rs.6,12,123/-. It is therefore relevant to note that it was only on the inspection of the intelligence wing that the suppression has been noticed. Though the petitioner has made several contentions in this regard I am of the view that this Court need not look into such contentions especially on account of the fact that the appellate authority has to consider the matter on merits. That apart, the assessing authority having referred to the assessment order and the contentions of the petitioner formed an opinion that stay can be granted only on deposit of 30% of the amount demanded. Taking into consideration the total amount of Rs.3,85,536/- and having regard to the fact that the petitioner's appeal is pending, I am of the view that a slight modification can be made to the order passed in Ext.P12 especially on account of the fact that the petitioner has remitted the admitted tax. The amount shown as 30% of the demand in Ext.P12 can be reduced to 20% of the outstanding amount. W.P.(C)No.25830 of 2014 3 With the aforesaid modification to Ext.P12, this writ petition is disposed of. The amount shall be paid within a period of one month. Sd/- A.M.SHAFFIQUE JUDGE vpv "