T.A.SUBAIR, vs. THE STATE TAX OFFICER (FORMERLY COMMERCIAL TAX OFFICER),

WP(C)/24010/2019HC KeralaKLHC01062140201904 September 2019Author: HONOURABLE MR.JUSTICE S.V.BHATTI6 pages

AI SummaryPartly Allowed

What did the High Court hold?

The High Court, after perusing the relevant documents (Exts. P1 to P8), was satisfied that a case was made out for issuing necessary directions. The Court found merit in the petitioner's plea for expeditious disposal of the delay condonation and stay petitions. The operative directions issued were: (a) The appellate authority (2nd respondent) was directed to consider and dispose of the delay condonation petitions (Exts. P5 and P6) and stay petitions (Exts. P7 and P8) as early as possible, preferably within two months from the date of receipt of the judgment. (b) The respondents were directed not to take coercive steps or recover the amounts determined in the assessment orders under appeal for a period of ten weeks from the date of the judgment. The Court disposed of the writ petition based on the limited prayer and grounds presented.

What were the facts?

The petitioner, T.A. Subair, proprietor of Shine Star Industries, filed appeals (Exts. P3 and P4) against assessment orders (Exts. P1 and P2) passed under the CST Act. The appeals were filed with a delay of 26 days, for which delay condonation petitions (Exts. P5 and P6) were submitted. Stay petitions (Exts. P7 and P8) were also filed. The petitioner sought a direction from the High Court for the appellate authority (2nd respondent) to expeditiously consider and dispose of these delay condonation and stay petitions. The petitioner's concern was that the assessing officer might initiate recovery steps while the appeals and related petitions were pending, potentially rendering the statutory appeal ineffective.

What were the issues?

1. Whether the High Court should issue a writ of mandamus directing the appellate authority to expeditiously consider and dispose of the delay condonation petitions (Exts. P5 and P6) and stay petitions (Exts. P7 and P8) filed by the petitioner? (Question of procedure/administrative direction). Assessee's Contention: The petitioner argued that the mere filing or pendency of an appeal does not automatically grant a stay. They contended that the delay in deciding the delay condonation and stay petitions allows the assessing officer to pursue recovery, which could render the statutory appeal academic or ineffective. The petitioner emphasized that the law provides for prompt disposal of such applications to protect the appellant's interest. Revenue's Contention: The judgment does not record any specific contentions made by the revenue.

Which sections of the Income-tax Act were involved?

CST Act

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 WEDNESDAY, THE 04TH DAY OF SEPTEMBER 2019 / 13TH BHADRA, 1941 WP(C).No.24010 OF 2019(A) PETITIONER/S: T.A.SUBAIR, PROPRIETOR, SHINE STAR INDUSTRIES, KEENPURAM, SOUTH VAZHAKKULAM. BY ADVS. SRI.N.MURALEEDHARAN NAIR SMT.K.HYMAVATHY RESPONDENT/S:

THE STATE TAX OFFICER (FORMERLY COMMERCIAL TAX OFFICER), STATE GOODS SERVICE TAX DEPARTMENT KERALA, IIND CIRCLE, PERUMBAVOOR - 683 542.

THE ASSISTANT COMMISSIONER (APPEALS), STATE GOODS SERVICE TAX DEPARTMENT, KERALA, ERNAKULAM - 682 015.

THE ASSISTANT COMMISSIONER, STATE GOODS SERVICE TAX DEPARTMENT, MUVATTUPUZHA - 686 661. OTHER PRESENT: GP. DR. THUSHARA JAMES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.09.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No.24010 OF 2019(A) -2- JUDGMENT The petitioner filed appeals in Exts.P3 and P4 aggrieved by the orders of assessment in Exts.P1 and P2 made under CST Act. The petitioner has filed the appeal with delay condonation petitions of 26 days in Ext.P5 and P6 and Exts.P7 and P8 stay petitions. The petitioner prays for appropriate direction to the appellate authority to consider and dispose of Ext.P5 and P6 and Exts.P7 and 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 appellate authority. The delay in considering and disposing of Ext.P5 and P6 and Exts.P7 and P8 results in the assessing officer taking steps for recovering the tax amount which is under challenge in Exts.P3 and P4. The assessing officer, if is successful in his effort the statutory appeal would become either academic or ineffective. It is

WP(C).No.24010 OF 2019(A) -3- further contended by the petitioner that in the manner the law provides for protecting the interest of appellant pending appeal, the orders on delay petition and stay petition are passed expeditiously. Hence the writ petition. 3. Perused Exts.P1, P2, P3, P4, P5, P6, P7 and P8. Prima facie I am satisfied that a case is made out for issuing necessary directions to 2nd respondent to dispose of the delay condonation petitions and stay petitions in Ext.P5 and P6 and Exts.P7 and P8 respectively. 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 Ext.P5 and P6 and Exts.P7 and 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

WP(C).No.24010 OF 2019(A) -4- or recover the amounts determined in the orders under appeal for ten weeks from today. Sd/- S.V.BHATTI JUDGE JS

WP(C).No.24010 OF 2019(A) -5- APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE ASSESSMENT ORDER PASSED BY 1ST RESPONDENT UNDER CST ACT FOR THE YEAR 2014-15 DATED 28/05/2018. EXHIBIT P2 TRUE COPY OF THE ASSESSMENT ORDER PASSED BY 1ST RESPONDENT UNDER CST ACT FOR THE YEAR 2015-16 DATED 19/08/2018. EXHIBIT P3 TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR THE YEAR 2014-15 DATED 27/11/2018. EXHIBIT P4 TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR THE YEAR 2015-16 DATED 27/11/2018. EXHIBIT P5 TRUE COPY OF THE DELAY CONDONATON PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR THE YEAR 2014-15 DATED 27/11/2018. EXHIBIT P6 TRUE COPY OF THE DELAY CONDONATION PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR THE YEAR 2015-16 DATED 27/11/2018. EXHIBIT P7 TRUE COPY OF THE STAY PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR THE YEAR 2014-15 DATED 27/11/2018. EXHIBIT P8 TRUE COPY OF THE STAY PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR THE YEAR 2015-16 DATED 27/11/2018. EXHIBIT P9 TRUE COPY OF THE DEMAND NOTICE IN FORM NO.IV ISSUED BY 1ST RESPONDENT FOR THE YEAR 2014-15 DATED 28/05/2018.

WP(C).No.24010 OF 2019(A) -6- EXHIBIT P10 TRUE COPY OF THE DEMAND NOTICE IN FORM IV ISSUED BY 1ST RESPONDENT FOR THE YEAR 2015-16 DATED 19/08/2018.

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