PRASAD C. vs. THE STATE TAX OFFICER-1

WP(C)/23105/2019HC KeralaKLHC01059736201927 August 2019Author: HONOURABLE MR.JUSTICE S.V.BHATTI5 pages

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What did the High Court hold?

The High Court directed the appellate authority (2nd respondent) to consider and dispose of the delay condonation petition (Ext.P3) and the stay petition (Ext.P4) as early as possible, preferably within two months from the date of receipt of a copy of the judgment. Additionally, 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 found a prima facie case for issuing these directions based on the limited prayer and grounds presented by the petitioner. The ratio decidendi is that in cases where the disposal of delay and stay petitions is pending, and there is a risk of recovery proceedings rendering the appeal infructuous, the High Court can issue directions for expeditious disposal and a temporary stay on coercive recovery.

What were the facts?

The petitioner, Prasad C., filed an appeal (Ext.P2) against an assessment order (Ext.P1) passed under Section 25(1) of the KVAT Act. The appeal was filed with a delay condonation petition (Ext.P3) and a stay petition (Ext.P4). The petitioner approached the High Court of Kerala seeking a direction to the Assistant Commissioner (Appeals) (2nd respondent) to expeditiously consider and dispose of the delay condonation and stay petitions. The petitioner argued that the delay in deciding these petitions could lead to the assessing officer initiating recovery proceedings, rendering the statutory appeal ineffective. The High Court perused the documents and found a case for issuing directions.

What were the issues?

1. Whether the appellate authority should be directed to expeditiously consider and dispose of the delay condonation petition (Ext.P3) and the stay petition (Ext.P4)? Assessee's Contentions: The petitioner contended that the mere filing or pendency of an appeal does not automatically grant a stay. The delay in disposing of the delay condonation and stay petitions by the appellate authority would allow the assessing officer to take steps for recovering the tax amount under challenge. This could render the statutory appeal academic or ineffective. The petitioner argued that the law provides for expeditious disposal of orders on delay petitions and 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 revenue.

Which sections of the Income-tax Act were involved?

Section 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 TUESDAY, THE 27TH DAY OF AUGUST 2019 / 5TH BHADRA, 1941 PETITIONER/S: PRASAD C. 8/60, PADINJARE HOUSE, KOODALLUR, PALLAVAUR P.O., PALAKKAD. BY ADVS. SRI.N.MURALEEDHARAN NAIR SRI.ANTONY JONES RESPONDENT/S:

THE STATE TAX OFFICER-1 WORKS CONTRACT, STATE GOODS AND SERVICE TAX DEPARTMENT, PALAKKAD - 678 001.

THE ASSISTANT COMMISSIONER (APPEALS) STATE GOODS AND SERVICE TAX DEPARTMENT, KERALA, PALAKKAD - 678 001.

THE ASSISTANT COMMISSIONER OF STATE TAX, STATE GOODS AND SERVICE TAX DEPARTMENT, KERALA, CHITTUR, PALAKKAD - 678 101. OTHER PRESENT: GP. DR. THUSHARA JAMES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT The petitioner filed appeal in Ext.P2 aggrieved by the orders of assessment in Ext.P1 made under Section 25(1) of the KVAT Act. The petitioner has filed the appeal with a delay condonation petition of 30 days in Ext.P3 and Ext.P4 stay petition. The petitioner prays for appropriate direction to the appellate authority to consider and dispose of Exts.P3 and P4 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 Exts.P3 and P4 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 orders on delay petition and stay petition are passed expeditiously. Hence the writ petition. 3. Perused Exts.P1, P2, P3 and P4. Prima facie I am satisfied that a case is made out for issuing necessary directions to 2nd respondent to dispose of the delay condonation petition and stay petition in Exts.P3 and P4 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 Exts.P3 and P4 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 JS

APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE ASSESSMENT ORDER PASSED BY 1ST RESPONDENT FOR THE YEAR 2011-12 DATED 18.06.2018. EXHIBIT P2 TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 29.05.2019. EXHIBIT P3 TRUE COPY OF THE DELAY CONDONATION PETITOIN FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 31.05.2019. EXHIBIT P4 TRUE COPY OF THE STAY PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 31.05.2019. EXHIBIT P5 TRUE COPY OF THE DEMAND NOTICE UNDER SECTION 7 OF THE KERALA REVENUE RECOVERY ACT ISSUED BY THE 3RD RESPONDENT FOR THE YEAR 2011-12 DATED 12.06.2019.

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