BENNY ABRAHAM vs. STATE TAX OFFICER(IB),

WP(C)/25072/2019HC KeralaKLHC01064837201920 September 2019Author: HONOURABLE MR.JUSTICE S.V.BHATTI4 pages

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What did the High Court hold?

The High Court, perusing the assessment order, appeal, and stay petition, found a prima facie case for issuing necessary directions to the second respondent (Deputy Commissioner (Appeals)). The Court disposed of the writ petition with the following directions: (a) The appellate authority (second respondent) was directed 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. (b) The respondents were directed not to take coercive steps or recover the amounts determined in the orders under appeal for ten weeks from the date of the judgment. The Court did not decide on the merits of the assessment or the appeal itself, focusing solely on the procedural aspect of the stay petition.

What were the facts?

The petitioner, Benny Abraham, proprietor of M/s. Holly Hock Resorts, filed a writ petition before the High Court of Kerala. The petition was filed against an order of assessment under Section 6(5) of the Kerala Tax on Luxuries Act, 1976. The petitioner had filed an appeal against this assessment order, along with a stay petition. The grievance was that the appellate authority had not expeditiously considered and disposed of the stay petition. The petitioner argued that the delay in deciding the stay petition could lead to the assessing officer initiating recovery proceedings, rendering the statutory appeal ineffective. The petitioner sought a direction for the expeditious disposal of the stay petition.

What were the issues?

1. Whether the High Court should direct the appellate authority to expeditiously consider and dispose of the stay petition filed by the petitioner? (Question of procedure/writ jurisdiction) Assessee's Contentions: - The mere filing or pendency of an appeal does not automatically grant a stay. - Delay in disposing of the stay petition by the appellate authority could result in the assessing officer taking recovery steps. - Such recovery actions would render the statutory appeal academic or ineffective. - The law provides for the expeditious passing of orders on stay petitions to protect the interest of the appellant pending appeal. Revenue's Contentions: - The judgment does not record any specific contentions made by the respondents (State Tax Officer, Deputy Commissioner (Appeals), Assistant Commissioner of State Tax).

Which sections of the Income-tax Act were involved?

Section 6(5)

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.25072 OF 2019(H) PETITIONER: BENNY ABRAHAM PROPRIETOR, M/S.HOLLY HOCK RESORTS, POTHAMEDU,MUNNAR, IDUKKI DISTRICT. BY ADVS. SRI.P.S.SOMAN SMT.T.RADHAMANY RESPONDENTS:

STATE TAX OFFICER(IB), NAGAMPADAM.P.O,KOTTAYAM-686002.

DEPTY COMMISSIONER(APPEALS), PUBLIC LIBRARY BUILDING, SASTRI ROAD,NAGAMPADAM.P.O, KOTTAYAM-686002.

ASSISTANT COMMISSIONER OF STATE TAX TAX COMPLEX, IDUKKI AT KATTAPPANA-685508. 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:

WP(C).No.25072 OF 2019(H) 2 JUDGMENT The petitioner filed appeal in Ext.P2 aggrieved by the order of assessment in Ext.P1 made under Section 6(5) of the Kerala Tax on Luxuries Act, 1976. 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

WP(C).No.25072 OF 2019(H) 3 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

WP(C).No.25072 OF 2019(H) 4 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE ASSESSMENT ORDER NO.32063481797/2015-16 DATED 18.03.2019 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER FOR THE YEAR 2015-16. EXHIBIT P2 TRUE COPY OF THE APPEAL MEMORANDUM FILED BEFORE THE 2ND RESPONDENT AGAINST EXHIBIT -P1 ASSESSMENT ORDER FOR THE YEAR 2015-16 DATED 29.04.2019 EXHIBIT P3 TRUE COPY OF THE PETITION FOR STAY OF COLLECTION OF DISPUTED TAX FILED AGAINST EXHIBIT-P1 ORDER DATED 29.04.2019 EXHIBIT P4 TRUE COPY OF THE REVENUE RECOVERY NOTICE ISSUED BY BY THE 3RD RESPONDENT DEMANDING THE ASSESSED TAX IN EXHIBIT P1 ORDER FOR THE YEAR 2015-16 DATED 30.08.2019.

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