TOMY KURIAN, vs. STATE TAX OFFICER,

WP(C)/25052/2019HC KeralaKLHC01064851201920 September 2019Author: HONOURABLE MR.JUSTICE S.V.BHATTI4 pages

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What did the High Court hold?

The High Court, after perusing the assessment order, appeal, and stay petition, was prima facie satisfied that a case was made out for issuing necessary directions to the second respondent (the appellate authority). The Court acknowledged the limited prayer made by the petitioner. Consequently, the High Court directed the appellate authority to consider and dispose of the stay petition (Ext.P3) as early as possible, preferably within two months from the date of receipt of a copy of the judgment. Additionally, the Court directed the respondents not to take coercive steps or recover the amounts determined in the orders under appeal for a period of ten weeks from the date of the judgment. The High Court did not decide on the merits of the appeal or the stay petition itself, but rather on the procedural aspect of expeditious disposal.

What were the facts?

The petitioner, Tomy Kurian, Managing Partner of M/s. Photofast Digi Press, filed a writ petition before the High Court of Kerala. The petition was filed against the State Tax Officer and other revenue authorities. The petitioner was aggrieved by an order of assessment made under Section 25(1) of the KVAT Act. He had filed an appeal against this assessment order, along with a stay petition. The petitioner's grievance was that the appellate authority had not expeditiously considered and disposed of his stay petition. He contended that the delay in deciding the stay petition could lead to the assessing officer initiating recovery proceedings, rendering the statutory appeal ineffective. Therefore, the petitioner sought a direction for the expeditious disposal of the stay petition.

What were the issues?

1. Whether the High Court should issue a direction to the appellate authority to expeditiously consider and dispose of the stay petition filed by the petitioner pending appeal? (Question of procedure and administrative efficiency) Assessee's Contentions: The petitioner argued that the mere filing or pendency of an appeal does not automatically grant a stay. He emphasized that a significant delay in deciding the stay petition could result in the recovery of disputed tax amounts by the assessing officer, thereby making the statutory appeal either academic or ineffective. The petitioner relied on the principle that the law provides for the protection of an appellant's interest pending appeal, necessitating the expeditious passing of orders on stay petitions. Revenue's Contentions: The judgment does not record any specific contentions made by the revenue in response to the writ petition.

Which sections of the Income-tax Act were involved?

25(1)

AI-generated summary — verify with the full judgment below

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI FRIDAY, THE 20TH DAY OF SEPTEMBER 2019 / 29TH BHADRA, 1941 WP(C).No.25052 OF 2019(F) PETITIONER: TOMY KURIAN, MANAGING PARTNER, M/S. PHOTOFAST DIGI PRESS, MARIYA PLAZA, OPP. BSNL EXCHANGE, NORTH KALAMASSERY, ERNAKULAM. BY ADVS. SRI.P.S.SOMAN SMT.T.RADHAMANY RESPONDENTS:

STATE TAX OFFICER, 1ST CIRCLE, STATE GOODS AND SERVICE TAX DEPARTMENT, KALAMASSERY AT CIVIL STATION, KAKKANAD P.O., ERNAKULAM-682030.

THE ASSISTANT COMMISSIONER (APPEALS), STATE GOODS AND SERVICE TAX DEPARTMENT, TAX COMPLEX, PERUMANOOR P.O., ERNAKULAM-15.

ASSISTANT COMMISSIONER OF STATE TAX, STATE GOODS AND SERVICE TAX DEPARTMENT, KALAMASSERY AT CIVIL STATION, KAKKANAD P.O., ERNAKULAM-682030. BY DR. THUSHARA JAMES, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.09.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT The petitioner filed appeal in Ext.P2 aggrieved by the order of assessment in Ext.P1 made under Section 25(1) of the KVAT Act. The petitioner has filed the appeal along with Ext.P3 stay petition. The petitioner prays for appropriate direction to the appellate authority to consider and dispose of Ext.P3 expeditiously. 2. The case of petitioner is that either the mere filing of appeal or mere pendency of appeal does not amount to granting stay by the appellate authority. The delay in considering and disposing of Ext.P3 results in the assessing officer taking steps for recovering the tax amount which is under challenge in Ext.P2. The assessing officer, if is successful in his effort the statutory appeal would become either academic or ineffective. It is further contended by the petitioner that in the manner the law provides for protecting the interest of appellant pending appeal, the order on stay petition is passed expeditiously. Hence the writ

petition. 3. Perused Exts. P1, P2 and P3. Prima facie I am satisfied that a case is made out for issuing necessary directions to second respondent to dispose of the stay petition in Ext.P3. Having regard to the limited prayer and the grounds referred to above, this Court is satisfied that the writ petition can be disposed of by this order: (a) The

appellate

authority/second respondent considers and disposes of Ext.P3 application as early as possible, preferably within two months from the date of receipt of copy of this judgment. (b) The respondents are directed not to take coercive steps or recover the amounts determined in the orders under appeal for ten weeks from today. SD/- S.V.BHATTI JUDGE DCS

APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE ASSESSMENT ORDER NO.32071286496/13-14 (MODIFIED) ISSUED BY THE 1ST RESPONDENT. EXHIBIT P2 TRUE COPY OF THE APPEAL MEMORANDUM FILED BEFORE THE 2ND RESPONDENT AGAINST EXHIBIT P1 ORDER DATED 15/07/2019. EXHIBIT P3 TRUE COPY OF THE STAY PETITION FILED BEFORE THE 2ND RESPONDENT DATED 15/07/2019. EXHIBIT P4 TRUE COPY OF THE REVENUE RECOVERY NOTICE ISSUED BY THE 3RD RESPONDENT FOR THE YEAR 2013-14 DATED 14/03/2016.

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