KIZHAKKEDATHU ENTERPRISES vs. THE AGRICULTURAL INCOME TAX AND STATE TAX OFFICER

WP(C)/34129/2019HC KeralaKLHC01088946201913 December 2019Author: HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR4 pages

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What did the High Court hold?

The High Court, taking note of the short delay of 39 days, deemed it appropriate to condone the delay. The Court directed the second respondent (Assistant Commissioner (Appeals)) to consider and pass a reasoned order on the stay petition (Ext.P5) within one month of receiving a copy of the judgment, after hearing the petitioner. Furthermore, the Court ordered that recovery steps for the amounts confirmed by the modified assessment order (Ext.P3) shall be kept in abeyance until the second respondent passes orders on the stay petition and communicates them to the petitioner. The petitioner was directed to furnish copies of the writ petition and the judgment to the second respondent for further action. The Court did not decide on the merits of the modified assessment order itself.

What were the facts?

The petitioner, Kizhakkeḍathu Enterprises, filed a writ petition before the High Court of Kerala challenging a modified assessment order (Ext.P3) under the Kerala Value Added Tax Act. The petitioner had filed an appeal (Ext.P4) along with a delay condonation application (Ext.P6) and a stay petition (Ext.P5) before the Assistant Commissioner (Appeals), the second respondent. The petitioner contended that recovery steps were being initiated by the respondents for the amounts confirmed in the modified assessment order, even before the stay petition was considered. The assessment years are not specified. The amount in dispute is not explicitly stated.

What were the issues?

1. Whether the delay of 39 days in filing the appeal before the second respondent should be condoned, considering the Kerala Value Added Tax Act? (Question of law/mixed law and fact) Assessee's contention: The delay was only 39 days, and the appeal was filed with a condonation application. The petitioner sought directions for the appellate authority to consider the stay petition. Revenue's contention: No specific contention is recorded in the judgment for the revenue regarding the delay or the stay petition. 2. Whether recovery steps for the amounts confirmed by the modified assessment order should be kept in abeyance until the appellate authority decides on the stay petition? (Question of law/mixed law and fact) Assessee's contention: Recovery steps were being taken prematurely, before the disposal of the stay petition. Revenue's contention: No specific contention is recorded in the judgment for the revenue regarding the stay of recovery.

Which sections of the Income-tax Act were involved?

Kerala Value Added Tax Act

AI-generated summary — verify with the full judgment below

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR FRIDAY, THE 13TH DAY OF DECEMBER 2019 / 22ND AGRAHAYANA, 1941 WP(C).No.34129 OF 2019(M) PETITIONER/S: KIZHAKKEDATHU ENTERPRISES PAZHAVANGADI P O, RANNI, PATHANAMTHITTA DISTRICT, PIN-689673. REPRESENTED BY ITS PARTNER.MR. JUBI PHILIP BY ADV. SRI.BEJOY CHERIYAN RESPONDENT/S: 1 THE AGRICULTURAL INCOME TAX AND STATE TAX OFFICER STATE GOODS AND SERVICES TAX DEPARTMENT, RANNI, PATHANAMTHITTA DISTRICT, PIN-689645. 2 THE ASSISTANT COMMISSIONER(APPEALS) STATE GOODS AND SERVICE TAX DEPARTMENT, CIVIL STATION COMPLEX, RANNI, PATHANAMTHITTA DISTRICT, PIN-689645. GOVERNMENT PLEADER DR.THUSHARA JAMES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.34129 OF 2019(M) 2

JUDGMENT Against Ext.P3 modified assessment order under the Kerala Value Added Tax Act, the petitioner has preferred Ext.P4 appeal together with Ext.P6 delay condonation application and Ext.P5 stay petition before the 2nd respondent. It is the case of the petitioner that even prior to considering the stay petition, recovery steps are taken by the respondents against the petitioner for recovery of the amounts confirmed by Ext.P3 modified assessment order.

I have heard the learned counsel appearing for the petitioner and also the learned Government Pleader appearing for the respondents. On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, I dispose the writ petition with the following directions:

Taking note of the fact that the delay in approaching the 2nd respondent is only 39 days, I deem it appropriate to condone the delay and direct the 2nd respondent to consider and pass reasoned orders on Ext.P5 stay petition within a period of one month from the date of receipt of a copy of this judgment, after hearing the petitioner.

Recovery steps for recovery of amounts confirmed against the petitioner by Ext.P3 modified assessment order shall be kept in abeyance till such time as orders are passed by the 2nd respondent as directed above and communicated to the petitioner.

WP(C).No.34129 OF 2019(M) 3

The petitioner shall produce a copy of the writ petition together with a copy of this judgment, before the 2nd respondent, for further action. A.K.JAYASANKARAN NAMBIAR JUDGE

WP(C).No.34129 OF 2019(M) 4

Appendix — schedule of exhibits

APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF THE ASSESSMENT ORDER UNDER THE KVAT ACT DATED 30.11.2017 PASSED BY THE 1ST RESPONDENT FOR THE YEAR 2014-15. EXHIBIT P2 COPY OF THE APPELLATE ORDER DATED 28.04.2018 PASSED BY THE 2ND RESPONDENT FOR THE YEAR 2014-15. EXHIBIT P3 COPY OF THE MODIFIED ASSESSMENT ORDER DATED 29.08.2019 PASSED BY THE 1ST RESPONDENT. EXHIBIT P4 COPY OF THE APPEAL DATED 05.12.2019 FILED BY THE PETITIONER AGAINST EXT.P3 MODIFIED ASSESSMENT ORDER. EXHIBIT P5 COPY OF THE STAY PETITION DATED 05.12.2019 FILED BY THE PETITIONER ALONG WITH EXT.P4 APPEAL. EXHIBIT P6 COPY OF THE DELAY PETITION DATED 05.12.2019 FILED BY THE PETITIONER ALONG WITH EXT.P4 APPEAL. sd

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