Wp(C)/1176/2017 Of Kavumkal Granites (Pvt) Ltd v. Agricultural Income Tax & Commercial Tax Officer

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN THURSDAY, THE 12TH DAY OF JANUARY 2017/22ND POUSHA, 1938 WP(C).No. 1176 of 2017 (V) ---------------------------------------- PETITIONER(S) : -------------------------- KAVUMKAL GRANITES (PVT) LTD., MALAYALAPPUZHA EROM (P.O), VADASSERIKKARA, PATHANAMTHITTA DISTRICT, PIN - 689 662, (REPRESENTED BY SRI.SABU KURIAKOSE, MANAGING DIRECTOR). BY ADVS. SRI.K.N.SREEKUMARAN SMT.V.P.SEENA DEVI RESPONDENT(S) : ---------------------------- BY GOVERNMENT PLEADER SRI. V.K.SHAMSUDHEEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 1176 of 2017 (V) ----------------------------------------- APPENDIX PETITIONER(S)' EXHIBITS : EXHIBIT P1. TRUE COPY OF THE ASSESSMENT ORDER BEARING NO.32030962683 DATED 25.08.2016 FOR 2010-11 ISSUED BY THE 1ST RESPONDENT.NO.32030962683 DATED 25.08.2016 FOR 2010-11 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P2. TRUE COPY OF THE ASSESSMENT ORDER BEARING NO.32030962683 DATED 25.08.2016 FOR 2011-12 ISSUED BY THE 1ST RESPONDENT. NO.32030962683 DATED 25.08.2016 FOR 2011-12 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P3. TRUE COPY OF THE ASSESSMENT ORDER BEARING NO.32030962683 DATED 25.08.2016 FOR 2012-13 ISSUED BY THE 1ST RESPONDENT.NO.32030962683 DATED 25.08.2016 FOR 2012-13 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P4. TRUE COPY OF THE ASSESSMENT ORDER BEARING NO.32030962683 DATED 25.08.2016 FOR 2013-14 ISSUED BY THE 1ST RESPONDENT.NO.32030962683 DATED 25.08.2016 FOR 2013-14 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P5. TRUE COPY OF THE PENALTY ORDER BEARING NO.32030962683DATED 25.08.2016 FOR 2010-11 ISSUED BY THE 1ST RESPONDENT.DATED 25.08.2016 FOR 2010-11 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P6. TRUE COPY OF THE PENALTY ORDER BEARING NO.32030962683DATED 25.08.2016 FOR 2011-12 ISSUED BY THE 1ST RESPONDENT.DATED 25.08.2016 FOR 2011-12 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P7. TRUE COPY OF THE PENALTY ORDER BEARING NO.32030962683DATED 25.08.2016 FOR 2012-13 ISSUED BY THE 1ST RESPONDENT.DATED 25.08.2016 FOR 2012-13 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P8. TRUE COPY OF THE PENALTY ORDER BEARING NO.32030962683DATED 25.08.2016 FOR 2013-14 ISSUED BY THE 1ST RESPONDENT.DATED 25.08.2016 FOR 2013-14 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P9.TRUE COPY OF THE APPEAL AGAINST ASSESSMENT FOR 2010-11 FILED ON 07.10.2016 BY THE PETITIONER BEFORE THE 2ND RESPONDENT.FILED ON 07.10.2016 BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P9(A). TRUE COPY OF THE STAY PETITION FOR 2010-11 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P10. TRUE COPY OF THE APPEAL AGAINST ASSESSMENT FOR 2011-12 FILED ON 07.10.2016 BY THE PETITIONER BEFORE THE 2ND RESPONDENT.FILED ON 07.10.2016 BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P10(A). TRUE COPY OF THE STAY PETITION FOR 2011-12 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P11. TRUE COPY OF THE APPEAL AGAINST ASSESSMENT FOR 2012-13 FILED ON 07.10.2016 BY THE PETITIONER BEFORE THE 2ND RESPONDENT.FILED ON 07.10.2016 BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P11(A). TRUE COPY OF THE STAY PETITION FOR 2012-13 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P12. TRUE COPY OF THE APPEAL AGAINST ASSESSMENT FOR 2013-14 FILED ON 07.10.2016 BY THE PETITIONER BEFORE THE 2ND RESPONDENT.FILED ON 07.10.2016 BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P12(A). TRUE COPY OF THE STAY PETITION FOR 2013-14 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P11. TRUE COPY OF THE APPEAL AGAINST ASSESSMENT FOR 2012-13 FILED ON 07.10.2016 BY THE PETITIONER BEFORE THE 2ND RESPONDENT.FILED ON 07.10.2016 BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P11(A). TRUE COPY OF THE STAY PETITION FOR 2012-13 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P12. TRUE COPY OF THE APPEAL AGAINST ASSESSMENT FOR 2013-14 FILED ON 07.10.2016 BY THE PETITIONER BEFORE THE 2ND RESPONDENT.FILED ON 07.10.2016 BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P12(A). TRUE COPY OF THE STAY PETITION FOR 2013-14 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P13. TRUE COPY OF THE REVISIONS DATED 07.10.2016 AGAINST PENALTY FOR 2010-11 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.PENALTY FOR 2010-11 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXHIBIT P13(A). TRUE COPY OF THE STAY PETITION AGAINST PENALTY FOR 2010-11 FILED BY THE PETITIONER TO THE 3RD RESPONDENT. 2010-11 FILED BY THE PETITIONER TO THE 3RD RESPONDENT. EXHIBIT P14. TRUE COPY OF THE REVISIONS DATED 07.10.2016 AGAINST PENALTY FOR 2011-12 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.PENALTY FOR 2011-12 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXHIBIT P14(A). TRUE COPY OF THE STAY PETITION AGAINST PENALTY FOR 2011-12 FILED BY THE PETITIONER TO THE 3RD RESPONDENT. 2011-12 FILED BY THE PETITIONER TO THE 3RD RESPONDENT. EXHIBIT P15. TRUE COPY OF THE REVISIONS DATED 07.10.2016 AGAINST PENALTY FOR 2012-13 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.PENALTY FOR 2012-13 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXHIBIT P15(A). TRUE COPY OF THE STAY PETITION AGAINST PENALTY FOR 2012-13 FILED BY THE PETITIONER TO THE 3RD RESPONDENT. 2012-13 FILED BY THE PETITIONER TO THE 3RD RESPONDENT. EXHIBIT P16. TRUE COPY OF THE REVISIONS DATED 07.10.2016 AGAINST PENALTY FOR 2013-14 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.PENALTY FOR 2013-14 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXHIBIT P16(A). TRUE COPY OF THE STAY PETITION AGAINST PENALTY FOR 2013-14 FILED BY THE PETITIONER TO THE 3RD RESPONDENT. 2013-14 FILED BY THE PETITIONER TO THE 3RD RESPONDENT. EXHIBIT P17. TRUE COPY OF THE COMMON DEMAND NOTICE IN FORM 1 BEARING NO. TALUK FILE NO.2016/732/3/400 DATED 18.11.2016 ISSUED BY THE 4TH RESPONDENT.BEARING NO. TALUK FILE NO.2016/732/3/400 DATED 18.11.2016 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P18. TRUE COPY OF THE COMMON STAY ORDER DATED 15.12.2016 IN KVATA(PTA) 307/16, 308/16, 309/16 & 310/16 ISSUED BY THE 3RD RESPONDENT.KVATA(PTA) 307/16, 308/16, 309/16 & 310/16 ISSUED BY THE 3RD RESPONDENT. RESPONDENT(S)' EXHIBITS : NIL //TRUE COPY// P.A.TO JUDGE. K. VINOD CHANDRAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12[th] day of January, 2017 J U D G M E N T The petitioner is aggrieved with the assessment order issued by the Assessing Officer and penalty orderssubsequently issued. The appeals and revisions were filedagainst the assessment orders and penalty orders passed forthe years 2010-2011 to 2013 - 14. In the writ petition, the orderof conditional stay passed as Ext.P18, in the appeals, againstthe assessment and the recovery threatened on the basis of thepenalty orders are challenged. 2. The first appellate authority on a prima facieconsideration found that the appellant has to remit 40% of thebalance tax and interest demanded for the subject years. ThisCourt has also been invited to go through the assessmentorders which indicate that the petitioner had applied for Dated this the 12[th] day of January, 2017 J U D G M E N T The petitioner is aggrieved with the assessment order issued by the Assessing Officer and penalty orderssubsequently issued. The appeals and revisions were filedagainst the assessment orders and penalty orders passed forthe years 2010-2011 to 2013 - 14. In the writ petition, the orderof conditional stay passed as Ext.P18, in the appeals, againstthe assessment and the recovery threatened on the basis of thepenalty orders are challenged. 2. The first appellate authority on a prima facieconsideration found that the appellant has to remit 40% of thebalance tax and interest demanded for the subject years. ThisCourt has also been invited to go through the assessmentorders which indicate that the petitioner had applied for compounding with three machineries, while the petitionerhimself had obtained consent from the Pollution ControlBoard for about 7 machineries. The petitioner's contention isthat the other machineries were not working. If that be so,there is no reason why the petitioner should have applied forconsent renewal with respect to the said machineries from thePollution Control Board. 3. It is on the basis of the information gatheredfrom the other Departments, the Assessing Officer proceededto assess the petitioner for the suppression effected and alsoimpose penalty for the alleged offences. This Court does notfind any reason to interfere with Ext.P18 which found theappellant entitled only to a conditional stay order. 4. However, with respect to the condition imposed,it is to be noticed that the proviso to subsection(4) of Section55 speaks of an option to be exercised by the appellant in paying20% of the disputed tax along with collected tax, upon whichthere is a blanket stay statutorily granted. In such circumstance, if the appellant pays 20% of the tax demandedwithin a period of two months from the date of receipt of a certified copy of this judgment, for all the years, Ext.P18 shallstand set aside and the recovery would be kept in abeyance tilldisposal of the appeal. If not the demand would be enforced byappropriate recovery proceedings. 5. As to the revisions filed against the penalty orders there shall be a direction to the revisional authority toconsider the stay application within a period of two months,during which period, the recovery shall be kept in abeyanceand subsequently the recovery shall be governed by the orderpassed by the revisional authority. Writ petition is disposed of with the aboveobservations. jma Sd/- (K. VINOD CHANDRAN, JUDGE)//true copy// P.A to Judge