Hotel Chanakya v. The Assistant Commissioner (Assessment)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR WEDNESDAY, THE 28TH DAY OF OCTOBER 2015/6TH KARTHIKA, 1937 WP(C).No. 32668 of 2015 (G) ---------------------------- PETITIONER(S):

-------------------------- HOTEL CHANAKYA, CHANDRANAGAR, PALAKKAD, REPRESENTED BY ITS MANAGING PARTNER, SATHEESH KUMAR. P.

BY ADVS.SRI.N.MURALEEDHARAN NAIR, SRI.V.K.SHAMUSUDHEEN.

RESPONDENT(S):

----------------------------

1. THE ASSISTANT COMMISSIONER (ASSESSMENT), SPECIAL CIRCLE, COMMERCIAL TAXES, PALAKKAD-678 001.

2. THE DEPUTY COMMISSIONER (APPEALS), DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM-682 015.

3. THE INSPECTING ASSISTANT COMMISSIONER, DEPARTMENT OF COMMERCIAL TAXES, PALAKKAD-678 001.

BY GOVT. PLEADER SMT.LILLY K.T.

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28-10-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

rs.

WP(C).No. 32668 of 2015 (G) APPENDIX PETITIONER'S EXHIBITS:- EXT.P1 COPY OF THE ASSESSMENT ORDER PASSED BY 1ST RESPONDENT FOR THE YEAR 2012-13 DATED 31/08/2015.

EXT.P2 COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR THE YEAR 2012-13 DATED 18/09/2015. EXT.P3 COPY OF THE STAY PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR THE YEAR 2012-13 DATED 18/09/2015. EXT.P4 COPY OF THE INTERIM ORDER PASSED BY THE 2ND RESPONDENT FOR THE YEAR 2012-13 DATED 07/10/2015.

EXT.P5 COPY OF THE DEMAND NOTICE IN FORM NO.13 ISSUED BY 1ST RESPONDENT FOR THE YEAR 2012-13 DATED 31/08/2015. EXT.P6 COPY OF THE DEMAND NOTICE IN FORM NO.24 ISSUED BY 1ST RESPONDENT FOR THE YEAR 2012-13 DATED 31/08/2015. RESPONDENT'S EXHIBITS:- NIL.

//TRUE COPY// P.S. TO JUDGE rs.

A.K.JAYASANKARAN NAMBIAR, J.

=========================================== W.P.(C). No. 32668 of 2015 ===================================================== Dated this the 28th day of October, 2015

JUDGMENT

The petitioner is an assessee under the Kerala Value Added Tax Act, 2003. Against Ext.P1 assessment order for the assessment year 2012-2013, the petitioner had preferred Ext.P2 appeal before the 2nd respondent. Along with the appeal, the petitioner had also preferred Ext.P3 stay petition. The 2nd respondent has now passed Ext.P4 order directing the petitioner to pay 30% of the amount as a condition for the grant of stay against recovery of the balance amounts confirmed against the petitioner vide the assessment order.

2.

In the writ petition, the petitioner impugns the said conditional orders of stay, inter alia, on the ground that the 2nd respondent had not exercised his discretion validly while passing the said order.

3.

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

4.

On a consideration of the facts and circumstances of the

-2W.P.(C). No. 32668 of 2015 case and the submissions made across the bar, I dispose the writ petition with the following directions:- (i) In Ext.P4 order, the 2nd respondent does not state reasons as to why the petitioner was required to deposit the amounts as a condition for the grant of stay. This Court has held in Archana Agencies v. Commercial Tax Officer [2014(2) KLT 715] that an authority considering a stay petition is bound to give reasons even while granting conditional stay.

(ii) Ext.P4 order is quashed and the 2nd respondent is directed to reconsider the matter and pass fresh orders in the stay petitions filed by the petitioner, within one month from the date of receipt of a copy of this judgment after affording an opportunity of hearing to the petitioner.

(iii) Recovery steps, initiated against the petitioner shall be kept in abeyance till such time as fresh orders are passed by the 2nd respondent, as directed above, and communicated to the petitioner.

Sd/- A.K.JAYASANKARAN NAMBIAR JUDGE das /28.10.15