Kerala High Court
M/S.Prestige Estate Projects Ltd vs Asst.Commissioner (Wc & Lt) on 18 June, 2012
Author: Antony Dominic
Bench: Antony Dominic
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
TUESDAY, THE 20TH DAY OF NOVEMBER 2012/29TH KARTHIKA 1934
WP(C).No. 26699 of 2012 (J)
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PETITIONER(S):
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M/S.PRESTIGE ESTATE PROJECTS LTD.,
NO.32, BAY PRIDE MALL, MARINE DRIVE,
ERNAKULAM, KOCHI-31,
REPRESENTED BY THANKACHAN THOMAS.V.,
HEAD-BUSINESS OPERATIONS - KERALA.
BY ADVS.SRI.HARISANKAR V. MENON
SMT.MEERA V.MENON
SRI.MAHESH V.MENON
RESPONDENT(S):
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1. ASST.COMMISSIONER (WC & LT),
DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM,
KOCHI-682 018.
2. DEPUTY COMMISSIONER (APPEALS),
DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM-682 013.
3. INSPECTING ASST. COMMISSIONER,
DEPARTMENT OF COMMERCIAL TAXES, KAKKANADU,
ERNAKULAM-682 030.
R1 TO R3 BY SR GOVERNMENT PLEADER SMT.SHOBA ANNAMMA EAPEN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 20-11-2012, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
sts
WP(C)NO.26699/2012
APPENDIX
PETITIONER'S EXHIBITS:
P1 COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT DATED 18/06/2012
P2 COPY OF THE REPLY SUBMITTED BY THE PETITIONER BEFORE THE 1ST
RESPONDENT DATED 16/07/2012
P2(A) COPY OF THE LEDGER PRINT OUT, DATED NIL
P3 COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT DATED 31/07/2012
P4 COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 2ND
RESPONDENT DATED 14/09/2012
P5 COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DATED 18/10/2012
RESPONDENT'S EXHIBITS: NIL
/TRUE COPY/
P.S.TO.JUDGE
ANTONY DOMINIC, J.
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W.P.(C) NO.26699 OF 2012(J)
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Dated this the 20th day of November, 2012
J U D G M E N T
Heard the counsel for the petitioner and the Government Pleader appearing for the respondents.
2. Petitioner was issued Ext.P1 notice under Section 67 of the KVAT Act, levying penalty for not accounting the lifts purchased by the petitioner from abroad. Petitioner filed its reply, a copy of which is Ext.P2. Along with the reply, they also produced Ext.P2(a), to show that the lifts in question is already accounted at the head office. However, penalty of Rs.1,14,51,264/-, being double the tax, was levied on the petitioner as per Ext.P3 order. Against this order petitioner filed Ext.P4 appeal. Along with the appeal stay petition was also filed. In the stay petition, the appellate authority passed Ext.P5 order granting stay on condition that the petitioner will remit 40% of the penalty due and to furnish security for the balance. It is aggrieved by this order the writ petition is filed. WPC.No. 367/2012 :2 :
3. The contention of the petitioner is that the equipments in question having already been accounted at the head office on account of the centralised system of accounting, there is no offence warranting levy of penalty. On the other hand, Government Pleader disputed the contentions of the petitioner and contended that there is a clear suppression and therefore respondents were justified in levying penalty as ordered in Ext.P3,
4. Merits of the contentions raised by the parties are to be considered by the appellate authority as and when the appeal is considered and it is not proper for this court to consider those contentions at this stage. Further, when stay petitions are considered, it is unnecessary for the appellate authority or even this court, to go into merits of such contentions. Therefore I refrain from pronouncing anything on the acceptability or otherwise of the contentions raised by the petitioner.
5. However, in so far as the condition imposed by the appellate authority, requiring the petitioner to remit 40% of the WPC.No. 367/2012 :3 : penalty is concerned, I am inclined to agree with the learned counsel for the petitioner that having regard to the amount of penalty levied, this condition is an onerous one. Therefore I modify the condition imposed by the appellate authority and direct that the petitioner shall remit 20% of the amount due under Ext.P3 and furnish security for the balance amount due, as ordered by the Ext.P3. Payment shall be made and security shall be furnished within two weeks from today. Subject to compliance of the above, recovery will stand stayed till the disposal of the appeal.
Writ Petition is disposed of as above.
(ANTONY DOMINIC) JUDGE vi/ WPC.No. 367/2012 :4 :