JAYANARAYANAN C. vs. THE STATE TAX OFFICER,

WP(C)/23134/2019HC KeralaKLHC01059929201927 August 2019Author: HONOURABLE MR.JUSTICE S.V.BHATTI5 pages

AI SummaryPartly Allowed

What did the High Court hold?

The High Court, perusing the petitions, found prima facie merit in the petitioner's request for directions. The Court directed the 2nd respondent (Assistant Commissioner (Appeals)) 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 the judgment. Additionally, the Court directed the respondents 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 appeal itself, focusing solely on the procedural aspect of expeditious disposal of interim applications.

What were the facts?

The petitioner, a PWD contractor, 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 sought a direction for the appellate authority to expeditiously consider and dispose of these petitions. The petitioner argued that mere filing or pendency of an appeal does not grant a stay, and the delay in deciding the stay petition allows the assessing officer to initiate recovery proceedings, potentially rendering the statutory appeal ineffective. The petitioner contended that orders on delay and stay petitions should be passed promptly to protect the appellant's interest pending appeal.

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) filed by the petitioner? (Question of procedure/mixed law and fact) Assessee's Contentions: - The mere filing or pendency of an appeal does not automatically grant a stay. - Delay in deciding the stay petition allows the assessing officer to pursue recovery, making the appeal academic or ineffective. - Law provides for expeditious disposal of delay condonation and stay petitions to protect the appellant's interest. Revenue's Contentions: - No specific contentions recorded for the revenue in the judgment.

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: JAYANARAYANAN C. PWD CONTRACTOR, 8/60 PADINJARE HOUSE, KOODALLUR, PALLAVUR, PALAKKAD. BY ADVS. SRI.N.MURALEEDHARAN NAIR SMT.K.HYMAVATHY RESPONDENT/S:

THE STATE TAX OFFICER, WORKS CONTRACT, STATE GOODS AND SERVICE TAX DEPARTMENT, PALAKKAD-678001.

THE ASSISTANT COMMISSIONER (APPEALS), STATE GOODS SERVICE TAX DEPARTMENT KERALA, PALAKKAD-678001.

THE ASSISTANT COMMISSIONER OF STATE TAX, STATE GOODS SERVICE TAX DEPARTMENT, KERALA, CHITTUR, PALAKKAD-678 101. 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 2015-16 DATED 28.6.2018. EXHIBIT P2 TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 29.5.2019. EXHIBIT P3 TRUE COPY OF THE DELAY CONDONATION PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 31.5.2019. EXHIBIT P4 TRUE COPY OF THE STAY PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 31.5.2019. EXHIBIT P5 TRUE COPY OF THE DEMAND NOTICE UNDER SECTION 7 OF THE KERALA REVENUE RECOVERY ACT ISSUED BY 3RD RESPONDENT FOR THE YEAR 2015-16 DATED 30.5.2019.

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