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High Court of KeralaWP(C)/11847/2015disposed of

N.C.Gardens & Beach Resort v. Deputy Commissioner (Appeals)

2015-04-09Honourable Dr. Justice A.K.Jayasankaran Nambiar7 pages

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR THURSDAY, THE 9TH DAY OF APRIL 2015/19TH CHAITHRA, 1937 WP(C).No. 11847 of 2015 (E) ---------------------------- PETITIONER(S):

-------------------------- N.C.GARDENS & BEACH RESORT, ARIYALLUR P.O., MALAPPURAM, REPRESENTED BY ITS MANAGING PARTNER, N.C.MOHANAN, S/O.V.GOVINDAN NAIR, AGED 52, RESIDING AT N.C.HOUSE, P.O.ARIYALLUR, MALAPPURAM DISTRICT.

BY ADVS.SRI.K.T.SHYAMKUMAR SRI.HARISH R. MENON RESPONDENT(S):

---------------------------- 1.DEPUTY COMMISSIONER (APPEALS) COMMERCIAL TAXES DEPARTMENT, ERNAKULAM IN CHARGE OF MALAPPURAM PIN 676505. 2.THE COMMERCIAL TAX OFFICER (LUXURY TAX), COMMERCIAL TAXES DEPARTMENT, MALAPPURAM AT MANJERI. PIN 676 121.

3.THE DEPUTY TAHASILDAR (REVENUE RECOVERY) TIRURANGADI, MALAPPURAM DISTRICT. PIN 676 300. R BY GOVERNMENT PLEADER SMT.SOBHA ANNAMMA EAPPEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09-04-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.P.(C).NO.11847/2015 APPENDIX PETITIONER'S EXHIBITS:

EXT.P1: COPY OF THE ASSESSMENT ORDER FOR THE YEAR 2007-08. EXT.P2: COPY OF THE PENALTY ORDER FOR THE YEAR 2007-08. EXT.P3: COPY OF THE ASSESSMENT ORDER FOR THE YEAR 2008-09. EXT.P4: COPY OF THE ASSESSMENT ORDER FOR THE YEAR 2009-10 ISSUED BY THE 2ND RESPONDENT.

EXT.P5: COPY OF THE ASSESSMENT ORDER FOR THE YEAR 2010-11. EXT.P6: COPY OF THE PENALTY ORDER DATED 11.3.2013 FOR THE YEAR 2010-11 ISSUED BY THE 2ND RESPONDENT.

EXT.P7: COPY OF THE ASSESSMENT ORDER FOR THE YEAR 2011-12. EXT.P8: COPY OF THE PENALTY ORDER FOR THE YEAR 2011-12. EXT.P9: COPY OF THE JUDGMENT DATED 28.10.2014 IN W.P.(C).NO.5723/2010 AND CONNECTED CASES.

EXT.P10: COPY OF THE APPEAL FILED BY THE PETITIONER AGAINST THE ASSESSMENT ORDER FOR THE YEAR 2007-08.

EXT.P11: COPY OF THE PETITION FOR STAY FILED IN THE APPEAL AGAINST THE ASSESSMENT ORDER FOR THE YEAR 2007-08.

EXT.P12: COPY OF THE PETITION FOR CONDONATION OF DELAY FILED ALONG WITH THE APPEAL AGAINST THE ASSESSMENT ORDER FOR THE YEAR 2007-08. EXT.P13: COPY OF THE APPEAL FILED BY THE PETITIONER AGAINST THE PENALTY ORDER FOR THE YEAR 2007-08.

EXT.P14: COPY OF THE PETTION FOR STAY FILED IN THE APPEAL AGAINST THE PENALTY ORDER FOR THE YEAR 2007-08.

EXT.P15: COPY OF THE PETITION FOR CONDONATION OF DELAY FILED ALONG WITH THE APPEAL AGAINST THE PENALTY ORDER FOR THE YEAR 2007-08. EXT.P16: COPY OF THE APPEAL FIELD BY THE PETITIONER AGAINST THE ASSESSMENT ORDER FOR THE YEAR 2008-09.

EXT.P17: COPY OF THE PETITION FOR STAY FILED IN THE APPEAL AGAINST THE ASSESSMENT ORDER FOR THE YEAR 2008-09.

W.P.(C).NO.11847/2015 EXT.P18: COPY OF THE PETITION FOR CONDONATION OF DELAY FILED ALONG WITH THE APPEAL AGAINST THE ASSESSMENT ORDER FOR THE YEAR 2008-09. EXT.P19: COPY OF THE APPEAL FILED BY THE PETITIONER AGAINST THE ASSESSMENT ORDER FOR THE YEAR 2009-10.

EXT.P20: COPY OF THE PETITION FOR STAY FILED IN THE APPEAL AGAINST THE ASSESSMENT ORDER FOR THE YEAR 2009-10.

EXT.P21: COPY OF THE PETITION FOR CONDONATION OF DELAY FILED ALONG WITH THE APPEAL AGAINST THE ASSESSMENT ORDER FOR THE YEAR 2009-10. EXT.P22: COPY OF THE APPEAL FILED BY THE PETITIONER AGAINST THE ASSESSMENT ORDER FOR THE YEAR 2010-11.

EXT.P23: COPY OF THE PETITION FOR STAY FILED IN THE APPEAL AGAINST THE ASSESSMENT ORDER FOR THE YEAR 2010-11.

EXT.P24: COPY OF THE PETITION FOR CONDONATION OF DELAY FILED ALONG WITH THE APPEAL AGAINST THE ASSESSMENT ORDER FOR THE YEAR 2010-11. EXT.P25: COPY OF THE APPEAL FILED BY THE PETITIONER AGAINST THE PENALTY ORDER FOR THE YEAR 2010-11.

EXT.P26: COPY OF THE PETITION FOR STAY FILED IN THE APPEAL AGAINST THE PENALTY ORDER FOR THE YEAR 2010-11.

EXT.P27: COPY OF THE PETITION FOR CONDONATION OF DELAY FILED ALONG WITH THE APPEAL AGIANST THE PENALTY ORDER FOR THE YEAR 2010-11. EXT.P28: COPY OF THE APPEAL FILED BY THE PETITIONER AGAINST THE ASSESSMENT ORDER FOR THE YEAR 2011-12.

EXT.P29: COPY OF THE PETITION FOR STAY FILED IN THE APPEAL AGAINST THE ASSESSMENT ORDER FOR THE YEAR 2011-12.

EXT.P30: COPY OF THE PETITION FOR CONDONATION OF DELAY FILED ALONG WITH THE APPEAL AGAINST THE ASSESSMENT ORDER FOR THE YEAR 2011-12. EXT.P31: COPY OF THE APPEAL FILED BY THE PETITIONER AGAINST THE PENALTY ORDER FOR THE YEAR 2011-12.

EXT.P32: COPY OF THE PETITION FOR STAY FILED IN THE APPEAL AGAINST THE PENALTY ORDER FOR THE YEAR 2011-12.

EXT.P33: COPY OF THE PETITION FOR CONDONATION OF DELAY FILED ALONG WITH THE APPEAL AGAINST THE PENALTY ORDER FOR THE YEAR 2011-12. EXT.P34: COPY OF THE REVENUE RECOVERY NOTICE DATED 22.12.2011. EXT.P35: COPY OF THE REVENUE RECOVERY NOTICE DATED 11.10.2013 FOR THE ASSESSMENT YEAR 2009-10.

W.P.(C).NO.11847/2015 EXT.P36: COPY OF THE REVENUE RECOVERY NOTICE DATED 11.10.2013 FOR THE ASSESSMENT YEAR 2010-11.

RESPONDENTS EXHIBITS: NIL.

//TRUE COPY// P.S TO JUDGE

A.K.JAYASANKARAN NAMBIAR, J.

------------------------------- W.P.(C).NO.11847 OF 2015 (E) ----------------------------------- Dated this the 9th day of April, 2015

J U D G M E N T

For the assessment years 2007-08 to 2011-12, under the Kerala Tax on Luxuries Act, 1976, the assessments in relation to the petitioner were completed by Exts.P1, P3, P4, P5 and P7 orders. For three of the said assessment years, separate orders of penalty were also passed against the petitioner as borne out by Exts.P2, P6 and P8. Although the petitioner had initially challenged the levy of tax and imposition of penalty on him under the Kerala Tax on Luxuries Act, through an earlier writ petition before this Court, the said writ petition was disposed by Ext.P9 judgment holding that the petitioner would be liable to luxury tax in respect of the charges collected by him for entry ticket and camera/video permits. By the said judgment, the petitioner was also given the liberty to challenge the assessment orders and penalty orders to the extent it related to computation matters before the Appellate authorities under the Kerala Tax on Luxuries Act. In the writ petition, it is the case of the petitioner that pursuant to Ext.P9 judgment, the petitioner has now preferred

W.P.(C).No.11847/2015 Exts.P10, P13, P16, P19, P22, P25, P28 and P31 appeals against the assessment orders and penalty orders passed against him. Along with the said appeals, the petitioner also preferred Exts.P11, P14, P17, P20, P23, P26, P29 and P32 petitions for stay before the 1st respondent Appellate authority. Inasmuch as there was a delay in filing the said appeals,the petitioner also preferred delay condonation petitions before the said respondent. It is the case of the petitioner in the writ petition that till such time as the 1st respondent considers and passes orders on the stay petitions and delay condonation petitions preferred by the petitioner before him, recovery proceedings for recovery of the amounts confirmed against the petitioner by the assessment and penalty orders may be kept in abeyance.

2. I have heard the learned counsel appearing for the petitioner and also the learned Government Pleader appearing for the respondents.

On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, I dispose the writ petition with a direction to the 1st respondent to consider and pass orders on

W.P.(C).No.11847/2015 the stay petitions and delay condonation petitions within a period of two months from the date of receipt of a copy of this judgment, after hearing the petitioner. Recovery steps for recovery of amounts confirmed against the petitioner pursuant to the assessment and penalty orders, referred to above, shall be kept in abeyance till orders are passed by the 1st respondent as directed above and communicated to the petitioner.

A.K.JAYASANKARAN NAMBIAR JUDGE prp