EMAS GOLD AND DIAMONDS LLP vs. THE STATE TAX OFFICER

WP(C)/24995/2019HC KeralaKLHC01064476201920 September 2019Author: HONOURABLE MR.JUSTICE S.V.BHATTI5 pages

AI SummaryPartly Allowed

What did the High Court hold?

The High Court, upon perusing the documents, was prima facie satisfied that a case was made out for issuing directions to the 2nd respondent (Kerala Value Added Tax Appellate Tribunal) to dispose of the stay petitions. The Court noted the limited prayer made by the petitioner. Accordingly, the Court directed the 2nd respondent to consider and dispose of applications Exts. P6 & P8 as early as possible, preferably within two months from the date of receipt of the judgment. Additionally, the respondents were directed not to take coercive steps or recover the amounts under appeal for ten weeks from the date of the order. The Court did not decide on the merits of the appeal or the stay petitions themselves, but rather on the procedural aspect of their expeditious disposal and a temporary stay on recovery.

What were the facts?

The petitioner, M/s. Emas Gold and Diamonds LLP, filed appeals (Exts. P5 & P7) against assessment orders (Exts. P1 & P2) passed under Section 25(1) of the KVAT Act, and subsequent appellate orders (Exts. P3 & P4). The petitioner also filed stay petitions (Exts. P6 & P8) along with their appeals. The grievance is that the delay in considering these stay petitions is leading the assessing officer to initiate recovery proceedings for the disputed tax amounts. The petitioner argues that such recovery actions would render their statutory appeals either academic or ineffective, and that stay orders are meant to be passed expeditiously to protect the appellant's interest pending appeal.

What were the issues?

1. Whether the mere filing of an appeal or pendency of an appeal amounts to a stay of recovery proceedings by the assessing authority? Assessee's Contention: The petitioner contends that the mere filing of an appeal does not automatically grant a stay. They argue that the delay in disposing of stay petitions (Exts. P6 & P8) by the appellate authority (2nd respondent) is causing prejudice, as recovery steps are being initiated. This, they assert, undermines the purpose of statutory appeals and the mechanism for seeking interim relief. They rely on the principle that orders on stay petitions should be passed expeditiously to protect the appellant's interest. Revenue's Contention: The judgment does not record any specific contentions from the revenue.

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 PETITIONER: M/S.EMAS GOLD AND DIAMONDS LLP RAM MOHAN ROAD,KOZHIKODE, REPRESENTED BY ITS CHAIRMAN,BASHEER.K.P. BY ADVS. SRI.K.P.ABDUL AZEES SMT.T.ARCHANA RESPONDENTS:

THE STATE TAX OFFICER THIRD CIRCLE, KOZHIKODE-673004.

KERALA VALUE ADDED TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH,KOZHIKODE-673001.

THE STATE TAX OFFICER(RECOVERY), O/O DEPUTY COMMISSIONER, KOZHIKODE-673004.

THE COMMISSIONER, THIRUVANANTHAPURAM-695001. GP- DR. THUSHARA JAMES 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 appeals in Exts.P5 &P7 aggrieved by the orders of assessment in Exts.P1 & P2 made under Section 25(1) of the KVAT Act and Appellate Orders in Exts.P3 &P4. The petitioner has filed the appeals with stay petitions in Ext.P6 & P8. The petitioner prays for appropriate direction to the appellate authority to consider and dispose of Exts.P6 & P8 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 assessing authority. The delay in considering and disposing of Exts.P6 & P8 results in the assessing officer taking steps for recovering the tax amount which is under challenge in Ext.P5 & P7. 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 orders on stay petitions are passed expeditiously. Hence the writ petition. 3. Perused Exts.P1 to P8. Prima facie I am satisfied that a case

is made out for issuing necessary directions to the 2nd respondent to dispose of the stay petitions in Exts.P6 to P8. 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/2nd respondent considers and disposes of Exts.P6 & P8 applications 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 PV

APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 THE TRUE COPY OF ASSESSMENT ORDER NO.32110899489 C/2012-13 DATED 30.05.2018 PASSED BY STATE TAX OFFICER,THIRD CIRCLE,STATE GOODS & SERVICE TAX DEPARTMENT,KOZHIKODE EXHIBIT P2 THE TRUE COPY OF ASSESSMENT ORDER NO.32110899489 C/2013-14 DATED 30/05/2018 PASSED BY STATE TAX OFFICER, THIRD CIRCLE,STATE GOODS & SERVICE TAX DEPARTMENT,KOZHIKODE EXHIBIT P3 THE TRUE COPY OF APPELLATE ORDER IN KVAT APPEAL NO.1178/18 DATED 01/03/2019 PASSED BY ASSISTANT COMMISSIONER(APPEALS),STATE GOODS AND SERVICE TAX DEPARTMENT,KOZHIKODE EXHIBIT P4 THE TRUE COPY OF APPELLATE ORDER IN KVAT APPEAL NO.1178A/18 DATED 01/03/2019 PASSED BY ASSISTANT COMMISSIONER(APPEALS),STATE GOODS AND SERVICE TAX DEPARTMENT,KOZHIKODE. EXHIBIT P5 THE TRUE COPY OF APPEAL MEMORANDUM FOR THE YEAR 2012-13 FILED BEFORE THE KERALA EXHIBIT P6 THE TRUE COPY OF STAY PETITION FOR THE YEAR 2012-13 FILED BEFORE THE KERALA EXHIBIT P7 THE TRUE COPY OF APPEAL MEMORANDUM FOR THE YEAR 2013-14 FILED BEFORE THE KERALA EXHIBIT P8 THE TRUE COPY OF STAY PETITION FOR THE YEAR 2013-14 FILED BEFORE THE KERALA

TRIBUNAL,ADDITIONAL BENCH,KOZHIKODE. EXHIBIT P9 THE TRUE COPY OF REVENUE RECOVERY NOTICE NO.167/18-19 DATED 17/12/2018 FOR THE YEAR 2012-13,ISSUED BY STATE TAX OFFICER(RECOVERY),0/O DEPUTY COMMISSIONER,STATE GOODS & SERVICE TAX DEPARTMENT,KOZHIKODE. EXHIBIT P10 THE TRUE COPY OF REVENUE RECOVERY NOTICE NO.168/18-19 DATED 14/12/2018 FOR THE YEAR 2013-14,ISSUED BY STATE TAX OFFICER(RECOVERY),O/O DEPUTY COMMISSIONER,STATE GOODS & SERVICE TAX DEPARTMENT,KOZHIKODE. \\TRUE COPY// PA TO JUDGE PV

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