BIJU.K.ANTONY vs. THE STATE TAX OFFICER

WP(C)/21743/2019HC KeralaKLHC01055568201908 August 2019Author: HONOURABLE MR.JUSTICE S.V.BHATTI4 pages

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What did the High Court hold?

The High Court, after perusing the relevant documents (Exts. P1, P2, P3, and P4), was prima facie satisfied that a case was made out for issuing necessary directions to the second respondent (the appellate authority). The Court found that the limited prayer and the grounds presented justified issuing directions. Accordingly, the Court directed the appellate authority to consider and dispose of Exts. P3 and P4 (delay condonation and stay petitions) 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 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 disposing of the interlocutory applications.

What were the facts?

The petitioner, Biju K. Antony, proprietor of M/s. Cap Drinks, 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) for 278 days 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 the mere filing or pendency of an appeal does not grant a stay, and the delay in deciding the stay petition could lead to recovery proceedings by the assessing officer, rendering the appeal ineffective. The petitioner contended that orders on delay and stay petitions should be passed promptly as per law to protect the appellant's interest.

What were the issues?

1. Whether the High Court should issue a direction to the appellate authority to expeditiously consider and dispose of the delay condonation petition and the stay petition filed by the petitioner? (Question of procedure/mixed law and fact) Assessee's Contentions: - The mere filing or pendency of an appeal does not constitute a stay granted by the appellate authority. - Delay in disposing of the stay petition allows the assessing officer to initiate recovery proceedings, which could render the statutory appeal infructuous or ineffective. - Law mandates expeditious disposal of delay condonation and stay petitions to protect the appellant's interests pending appeal. 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 THURSDAY, THE 08TH DAY OF AUGUST 2019 / 17TH SRAVANA, 1941 WP(C).No.21743 OF 2019(P) PETITIONER: BIJU.K.ANTONY PROPRIETOR,M/S. CAP DRINKS, KUMBIDI, POOVATHUSERY BY ADVS. SMT.S.K.DEVI SRI.SANTHOSH P.ABRAHAM RESPONDENTS:

THE STATE TAX OFFICER KERALA STATE GOODS AND SERVICE TAX, CHALAKUDY-680 307

THE ASST. COMMISSIONER (APPEALS), KERALA STATE GOODS AND SERVICE TAX, POOTHLE,THRISSUR-680 004

THE ASST. COMMISSIONER OF STATE TAX, KERALA STATE GOODS AND SERVICE TAX,DEPT. IRINJALAKUDA-680 125 BY DR. THUSHARA JAMES, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT The petitioner filed appeal in Ext.P2 aggrieved by the order 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 278 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 second 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/second 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 DCS

APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE ASSESSMENT ORDER NO.32080872644/2011-12 DATED 2/3/2018. EXHIBIT P2 TRUE COPY OF THE APPEAL FOR THE YEAR 2011- 12 DATED 4/2/2019. EXHIBIT P3 TRUE COPY OF THE DELAY CONDONATION PETITION DATED 4/2/2019. EXHIBIT P4 TRUE COPY OF THE STAY PETITION DATED 4/2/2019. EXHIBIT P5 TRUE COPY OF THE DEMAND NOTICE NO.A2- 1505/2019 DATED 2/7/2019.

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