Kerala High Court
Ultra Readymix Concrete Private Ltd vs The Assistant Commissioner on 31 August, 2016
Author: A.M.Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THURSDAY, THE 15TH DAY OF DECEMBER 2016/24TH AGRAHAYANA, 1938
WP(C).No. 39900 of 2016 (J)
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PETITIONER(S):
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ULTRA READYMIX CONCRETE PRIVATE LTD.
4/942, NIDA, KANJIKODE, PALAKKAD, KERALA,
REPRESENTED BY ITS MANAGING DIRECTOR S. SIVASAMY.
BY ADV. SRI.K.S.HARIHARAN NAIR.
RESPONDENT(S):
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1. THE ASSISTANT COMMISSIONER,
SPECIAL CIRCLE, COMMERCIAL TAXES,
PALAKKAD, PIN-678 001.
2. THE DEPUTY COMMISSIONER (APPEALS),
COMMERCIAL TAXES, ERNAKULAM-682 015.
3. THE INSPECTING ASSISTANT COMMISSIONER,
COMMERCIAL TAXES, PALAKKAD-678 001.
4. THE COMMISSIONER OF COMMERCIAL TAXES,
THIRUVANANTHAPURAM, PIN-695 002.
BY GOVT. PLEADER SRI.V.K SHAMSUDHEEN.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 15-12-2016, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
rs.
WP(C).No. 39900 of 2016 (J)
APPENDIX
PETITIONER'S EXHIBITS:-
EXHIBIT P1 COPY OF THE ASSESSMENT ORDER DATED 31-08-2016 FOR THE
YEAR 2011-12 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P1(A) COPY OF THE ASSESSMENT ORDER DATED 31-08-2016 FOR THE
YEAR 2012-13 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P1(B) COPY OF THE ASSESSMENT ORDER DATED 31-08-2016 FOR THE
YEAR 2013-14 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P2 COPY OF THE APPEAL MEMORANDUM DATED 31-10-2016 FOR THE
YEAR 2011-12.
EXHIBIT P2(A) COPY OF THE APPEAL MEMORANDUM DATED 31-10-2016 FOR THE
YEAR 2012-13.
EXHIBIT P2(B) COPY OF THE APPEAL MEMORANDUM DATED 31-10-2016 FOR THE
YEAR 2013-14.
EXHIBIT P3 COPY OF THE DELAY CONDONATION PETITION DATED 21-11-2016
FOR THE YEAR 2011-12.
EXHIBIT P3(A) COPY OF THE DELAY CONDONATION PETITION DATED 21-11-2016
FOR THE YEAR 2012-13.
EXHIBIT P3(B) COPY OF THE DELAY CONDONATION PETITION DATED 21-11-2016
FOR THE YEAR 2013-14.
EXHIBIT P4 COPY OF THE STAY PETITION DATED 21-11-2016 FOR THE
YEAR 2011-12.
EXHIBIT P4(A) COPY OF THE STAY PETITION DATED 21-11-2016 FOR THE
YEAR 2012-13.
EXHIBIT P4(B) COPY OF THE STAY PETITION DATED 21-11-2016 FOR THE
YEAR 2013-14.
EXHIBIT P5 COPY OF THE REVENUE RECOVERY DEMAND NOTICE
DATED 21-11-2016 FOR THE YEAR 2011-12.
EXHIBIT P5(A) COPY OF THE REVENUE RECOVERY DEMAND NOTICE
DATED 21-11-2016 FOR THE YEAR 2012-13.
....2/-
WP(C).No. 39900 of 2016 (J)
EXHIBIT P5(B) COPY OF THE REVENUE RECOVERY DEMAND NOTICE
DATED 21-11-2016 FOR THE YEAR 2013-14.
EXHIBIT P6 COPY OF THE LETTER DATED 03-12-2016 SHOWING THE
PAYMENT OF 20% ALONG WITH DD FOR THE YEAR 2011-12.
EXHIBIT P6(A) COPY OF THE LETTER DATED 03-12-2016 SHOWING THE
PAYMENT OF 20% ALONG WITH DD FOR THE YEAR 2012-13.
EXHIBIT P6(B) COPY OF THE LETTER DATED 02-12-2016 SHOWING THE
PAYMENT OF 20% ALONG WITH DD FOR THE YEAR 2013-14.
EXHIBIT P7 COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT
DATED 06-12-2016.
EXHIBIT P8 COPY OF THE CIRCULAR NO.18/2016 DATED 27-08-2016 ISSUED BY
THE COMMISSIONER OF COMMERCIAL TAXES.
RESPONDENT'S EXHIBITS:- NIL.
//TRUE COPY//
P.S.TO JUDGE
rs.
A.M.SHAFFIQUE, J
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W.P.C.No.39900 of 2016
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Dated this the 15th day of December 2016
J U D G M E N T
Petitioner challenges Ext.P7 notice by which the petitioner is called upon to remit 20% of the interest portion which is payable in terms of the assessment order.
2. Petitioner submits that he had deposited 20% of the amount in terms of the proviso to Section 55(4) of the Kerala Value Added Tax Act, in which event, there will be an automatic stay and therefore Ext.P7 is bad in law.
3. Heard the learned Government Pleader who appears on behalf of the respondents.
Proviso to Section 55(4) of the Act reads as under:
"Provided further that where the appellant remits 20% of the disputed amount of tax along with collected tax, if any, further proceedings against recovery shall stand stayed till disposal of the appeal."
4. Proviso only indicates that there is an obligation on the part of the appellant to remit 20% of the disputed amount of tax. Apparently, the legislature did not intend that the petitioner W.P.C.No.39900/2016 2 should pay 20% of the interest on the disputed tax as well. If it was so, the legislature definitely could have made it very clear in the proviso.
5. Under such circumstances, I am of the view that Ext.P7 is not sustainable.
In the result,
i) This writ petition is allowed.
ii) Ext.P7 is set aside.
iii) It is made clear that the petitioner's obligation is only to pay 20% of the disputed tax for the purpose of obtaining stay of the appeal under the proviso to Section 55(4) of the Act.
(sd/-) (A.M.SHAFFIQUE, JUDGE) jsr