E.V. Mathai and Sons Pvt. Ltd. v. State Tax Officer (W.C. & LT), Luxury Tax, Idukki; Kerala Value Added Tax, Agricultural, Income Tax and Sales Tax Appellate Tribunal, Additional Bench, Kottayam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **MONDAY, THE 4[TH] DAY OF OCTOBER 2021 / 12TH ASWINA, 1943** ## **WP(C) NO. 3567 OF 2021** ## **PETITIONER :** **E.V.MATHAI AND SONS PVT. LTD., HILL VIEW, MUNNAR, PIN-685612, REPRESENTED BY ITS MANAGING DIRECTOR MR.TOMY MATHEW.** **BY ADVS. ANIL D. NAIR SRI.SREEJITH R.NAIR SMT.TELMA RAJU SRI.SANGEETH JOSEPH JACOB SMT.CHRISTINA ANNA PAUL** ## **RESPONDENTS :** - **1 THE STATE TAX OFFICER(WC AND LT), LUXURY TAX, IDUKKI AT KATTAPPANA – 685 515.** - **2 KERALA VALUE ADDED TAX, AGRICULTURAL,INCOME TAX AND SALES TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH, KOTTAYAM – 686 001.** **BY SENIOR GOVT.PLEADER DR.THUSHARA JAMES** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON** **04.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING :** **WP(C) NO. 3567 OF 2021** 2 ## **BECHU KURIAN THOMAS, J.** =-=-=-=-=-=-=-=-=-=-=-=-=-= ## **W.P.(C).No.3567 of 2021** =-=-=-=-=-=-=-=-=-=-=-=-=-= ## **Dated this the 4[th] day of October, 2021** ## **JUDGMENT** Challenging the assessment orders under the Kerala Taxes on Luxuries Act, 1976 for the assessment years 2014-15, 2015-16 and 2016-17, petitioner had preferred appeals before the statutory appellate authority. The appellate authority modified the assessment orders as evidenced by Exts.P5 and P6. Ext.P5 relates to the assessment year 2015-16 while Ext.P6 relates to the assessment years 2014-15, 2016-17 and 2017-18. 2. Aggrieved by the first Appellate Authority's orders, the writ petitioner preferred a second appeal before the Kerala Value Added Tax Appellate Tribunal, Additional Bench, Kottayam, as evident from Ext.P7 series. The stay petition filed along with the appeals were considered and orders were passed granting stay on condition of deposit of 20% of the demand. Petitioner is challenging the orders granting conditional stay on the ground that the same are not speaking orders. According to the petitioner, no reasons are forthcoming as to the basis for imposing the condition of deposit of 20%. **WP(C) NO. 3567 OF 2021** 3 3. I have heard Adv.Anil D.Nair, the learned counsel for the petitioner as well as the learned Senior Government Pleader Dr.Thushara James. 4. In support of the aforesaid contentions, Adv.Anil D.Nair, the learned counsel for the petitioner relies upon the decisions in _**Ravi Gupta v. Commissioner of Sales Tax, Delhi and Another [(2009) 5 SCC 208]**_ apart from the decisions in _**Archana Agencies v. Commercial Tax Officer [2014 (2) KLT 715]**_ and _**Shyla Pushpan and Others v. Commissioner of Income Tax (Appeals) and Others**_ in W.P.(C) No.26095 of 2019. It was also submitted that the requirement of giving reasons to support even a conditional order of stay has been consistently insisted upon by this Court as well as the Supreme Court and therefore, the absence of even a whisper of a reason in the impugned orders justifies the challenge raised by the petitioner. 5. The learned Government Pleader, on the other hand submitted that at the stage of grant of stay, there is no requirement of any detailed reasons to be given by the Tribunal and that the decisions cited by the learned counsel for the petitioner are not applicable as the same can be distinguished. **WP(C) NO. 3567 OF 2021** 4 6. Ext.P10, P10(a), P10(b) and P10(c) are the impugned orders granting conditional stay. Ext.P10 reads as below :- _“Heard._ _Appellant is willing to deposit 20% of the demand amount within 30 days. Stay granted on condition as above. Execute bond for balance amount.”_ 7. A perusal of the above order shows that the same is passed on consent. Since Ext.P10 order relating to the appeal filed against assessment years 2014-15 is passed on consent, I am of the view that the petitioner is not entitled to challenge the same. The consent as endorsed in the order impugned, deprives the petitioner the basis for challenging such an order. Hence challenge against Ext.P10 fails. 8. However, the challenge against Exts.P10(a), P10(b) and P10(c) stands on a different footing since the orders therein are different from that extracted above. The order passed by the Tribunal while granting stay for the assessment years 2015-16, 2016-17 and 2017-18 are identically worded and are as follows :- _“Heard._ _Stay granted on condition that the appellant shall deposit 20% of demand amount and execute bond for the balance amount within 30 days from today.”_ **WP(C) NO. 3567 OF 2021** 5 9. Perusal of the above order will evidence the distinction mentioned earlier between the orders in Ext.P10 and those in Ext.P10(a), P10(b) and P10(c). The latter orders are not passed on consent, but, are issued as orders of the Court. 10. In the decision in _**Ravi Gupta**_ 's case (supra), the Supreme Court had held that “on merely establishing a prima facie case, interim order of protection should not be passed. But if on a cursory glance it appears that the demand raised has no legs to stand, it would be undesirable to require the assessee to pay full or substantive part of the demand”. It was also observed that the petitions for stay should not be disposed of in a routine manner unmindful of the consequences flowing from the order requiring the assessee to deposit full or part of the demand. 11. On a perusal of orders impugned, it can be seen that the amount directed to be deposited in the three cases in Ext.P10(a), P10(b) and P10(c) are not substantial part of the demand, but are only 20% of the demand raised and on that basis, the said judgment of the Supreme Court could be distinguished. However, in _**Archana Agencies**_ ' case (supra), the learned single Judge of this Court had held that the requirement of giving reasons, although minimal in stay orders in matters of taxation, the same **WP(C) NO. 3567 OF 2021** **==> picture [7 x 10] intentionally omitted <==** cannot be understated and also that the duty to give reasons is only conducive to fairness. Yet again, the learned single Judge of this Court in the decision in WP(C) No.26095 of 2019 in Shyla Pushpan's case (supra) had, in an identical case where condition to pay 20% of the demand was imposed for grant of stay was challenged, the same was set aside and fresh consideration was directed due to absence of reasons. 12. The impugned orders in Exts.P10(a), P10(b) and P10(c) stands on the same footing as in **S** _**hyla Pushpan**_ 's case since reasons have not been stated for imposing the condition of payment of 20% of the total amount. I am therefore of the opinion that the said three orders are liable to be set aside. 13. Accordingly Exts.P10(a), P10(b) & P10(c) relating to the assessment years 2015-16, 2016-17 and 2017-18 shall stand set aside and the Tribunal shall pass fresh orders after hearing the petitioners. Since Ext.P10 order is passed with the consent of the petitioners as observed earlier, I am not inclined to interfere with the same. However, having regard to the submission of the learned counsel for the petitioners, a period of two weeks is granted from today to the petitioner to deposit the amount directed in Ext.P10. **WP(C) NO. 3567 OF 2021** 7 As far as the recovery relating to the period 2015-16, 2016-17 and 2017-18 are concerned, the same shall stand deferred till orders are passed on the stay petition. The writ petition is allowed in part. Sd/- **BECHU KURIAN THOMAS, JUDGE** RKM **WP(C) NO. 3567 OF 2021** 8 ## **APPENDIX OF WP(C) 3567/2021** ## **PETITIONER'S EXHIBITS :** **EXHIBIT P1 TRUE COPY OF THE ASSESSMENT ORDER FOR THE YEAR 2014-15 DATED 19.5.2018. EXHIBIT P2 TRUE COPY OF ASSESSMENT ORDER DATED 18.06.2018 FOR THE YEAR 2015-16** **EXHIBIT P3 TRUE COPY OF ASSESSMENT ORDER DATED 26.5.2018 FOR THE YEAR 2016-17** **EXHIBIT P4 TRUE COPY OF ASSESSMENT ORDER DATED 26.5.2018 FOR THE MONTH OF APRIL, MAY AND JUNE 2017-18 EXHIBIT P5 TRUE COPY OF THE ORDER OF APPELLATE AUTHORITY FOR THE ASSESSMENT YEARS 2015-16 EXHIBIT P6 TRUE COPY OF THE ORDER DATED 23.9.2019 FOR THE ASSESSMENT YEARS 2014-15,2016-17 AND 2017-18. EXHIBIT P7 TRUE COPY OF THE APPEAL MEMORANDUM FOR THE A.Y.2014-15 EXHIBIT P7(A) TRUE COPY OF THE APPEAL MEMORANDUM FOR THE A.Y.2015-16. EXHIBIT P7(B) TRUE COPY OF APPEAL MEMORANDUM FOR THE A.Y.2016-17 EXHIBIT P7(C) TRUE COPY OF APPEAL MEMORANDUM FOR THE A.Y.2017-18 EXHIBIT P8 TRUE COPY OF THE STAY PETITION FOR THE A.Y.YEAR 2014-15 EXHIBIT P8(A) TRUE COPY OF THE STAY PETITION FOR THE A.Y.YEAR 2015-16 EXHIBIT P8(B) TRUE COPY OF STAY PETITION FOR THE A.Y.YEAR 2016-17** **WP(C) NO. 3567 OF 2021** 9 **EXHIBIT P8(C)** **TRUE COPY OF STAY PETITION FOR THE A.Y.YEAR 2017-18** **EXHIBIT P9** **TRUE COPY OF PETITION TO CONDONE THE DELAY IN FILING THE APPEAL FOR THE YEAR 2014-15D** **EXHIBIT P9(A)** **TRUE COPY OF PETITION TO CONDONE THE DELAY IN FILING THE APPEAL FOR THE YEAR 2016-17** **EXHIBIT P9(B)** **TRUE COPY OF PETITION TO CONDONE THE DELAY IN FILING THE APPEAL FOR THE YEAR 2017-18** **EXHIBIT P10** **TRUE COPY OF THE ORDER DATED 12.1.2021 OF THE 2ND RESPONDENT FOR THE YEAR 2014-15** **EXHIBIT P10(A)** **TRUE COPY OF THE ORDER DATED 12.1.2021 OF THE 2ND RESPONDENT FOR THE YEAR 2015-16** **EXHIBIT P10(B) TRUE COPY OF THE ORDER DATED 12.1.2021 OF THE 2ND RESPONDENT FOR THE YEAR 2016-17** **EXHIBIT P10(C) TRUE COPY OF THE ORDER DATED 12.1.2021 OF THE 2ND RESPONDENT FOR THE YEAR 2017-18.**