Wp(C)/36492/2016 Of M/S. Febin Marine Foods v. Agricultural Income Tax & Commercial Tax Officer

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE MONDAY, THE 14TH DAY OF NOVEMBER 2016/23RD KARTHIKA, 1938 WP(C).No. 36492 of 2016 (J) ---------------------------- PETITIONER:----------- M/S.FEBIN MARINE FOODS, ERAMALLOOR, CHERTHALA, ALAPPUZHA- 688537,REPRESENTED BY ITS MANAGER S.S. NAVAS BY ADVS.SRI.V.DEVANANDA NARASIMHAM SRI.P.H.RIYAS RESPONDENT(S): -------------- 1. AGRICULTURAL INCOME TAX & COMMERCIAL TAX OFFICER,COMMERCIAL TAXES, KUTHIYATHODU, ALAPPUZHA- 688533.THE INTELLIGENCE OFFICER,SQUAD NO.III, CIVIL STATION ANNEX,COMMERCIAL TAXES, ALAPPUZHA- 688001.THE DEPUTY COMMISSIONER (APPEALS),COMMERCIAL TAXES, ASRAMAM (PO),KOLLAM - 691012.THE BRANCH MANAGER,FEDERAL BANK LIMITED, BYPASS, ALUVA- 683101. 2. 3. 4. R1 TO R3 BY GOVERNMENT PLEADER SRI.V.K.SHAMSUDHEEN mbr/ THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 36492 of 2016 (J) ---------------------------- APPENDIX PETITIONER(S)' EXHIBITS: ----------------------- EXHIBIT P1 : TRUE COPY OF THE TAX INVOICE DATED 12.09.2015 ISSUED FOR 700 BOX RAW PRAWNS FROM THE BRANCH OFFICE TO THE PETITIONER.ISSUED FOR 700 BOX RAW PRAWNS FROM THE BRANCH OFFICE TO THE PETITIONER. EXHIBIT P2 : TRUE COPY OF THE WAY BILL E -GENERATED ON 12.09.2015 IN SUPPORT OF EXT P1 INVOICE ACCOMPANIED WITH THE CONSIGNMENT.12.09.2015 IN SUPPORT OF EXT P1 INVOICE ACCOMPANIED WITH THE CONSIGNMENT. EXHIBIT P3 : TRUE COPY OF THE 17A NOTICE DATED 15.09.2015 ISSUED U/S. 47(2) OF THE KVAT ACT OF THE COMMERCIAL TAX INSPECTOR, WALAYAR CHECK POST DEMANDING SECURITY DEPOSIT FROM PETITIONER.ISSUED U/S. 47(2) OF THE KVAT ACT OF THE COMMERCIAL TAX INSPECTOR, WALAYAR CHECK POST DEMANDING SECURITY DEPOSIT FROM PETITIONER. EXHIBIT P4 : A TRUE COPY OF THE SUCH LETTER DATED 06.09.2016 ISSUED BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT AND TO THE PETITIONER.ISSUED BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT AND TO THE PETITIONER. EXHIBIT P5 : TRUE COPY OF THE PENALTY ORDER DATED 08.09.2016 PASSED U/S. 47(5) OF THE KVAT ACT FOR THE YEAR 2015-16 BY THE 2ND RESPONDENT. PASSED U/S. 47(5) OF THE KVAT ACT FOR THE YEAR 2015-16 BY THE 2ND RESPONDENT. EXHIBIT P6 : TRUE COPY OF THE LETTER DATED 08.09.2016 ISSUED BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT AND THE PETITIONER.BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT AND THE PETITIONER. EXHIBIT P7 : TRUE COPY OF THE APPEAL MEMORANDUM CHALLENGING EXBT P5 PENALTY ORDER FOR THE YEAR 2015-16 FILEDBY THE PETITIONER BEFORE 3RD RESPONDENT.EXBT P5 PENALTY ORDER FOR THE YEAR 2015-16 FILEDBY THE PETITIONER BEFORE 3RD RESPONDENT. EXHIBIT P8 : TRUE COPY OF THE INTERLOCUTORY APPLICATION FOR STAY DATED 09.11.2016 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT AGAINST ENCASHMENT OF BANK GUARANTEE.STAY DATED 09.11.2016 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT AGAINST ENCASHMENT OF BANK GUARANTEE. RESPONDENT(S)' EXHIBITS:NIL----------------------- //TRUE COPY// mbr/ P.S. TO JUDGE A.M. SHAFFIQUE, J. ------------------------------------- W.P.(C) No.36492 of 2016 -------------------------------------- Dated this the 14[th] day of November, 2016 JUDGMENT Petitioner has filed Ext.P7 appeal before the 3[rd] respondent and along with the appeal, petitioner has also filedExt.P8, an application for stay. It is submitted that during thependency of the appeal, steps are being taken by therespondent authorities for recovering the amount in terms ofExt.P3. 2. Having regard to the fact that an appeal is pendingbefore the competent authority, I do not think it necessary toconsider the matter on merits. Suffice to say that the appellateauthority has to consider the stay application on merits withina specified time and in the meantime, the recovery can be keptin abeyance. Accordingly, this writ petition is disposed of as under: -------------------------------------- Dated this the 14[th] day of November, 2016 JUDGMENT Petitioner has filed Ext.P7 appeal before the 3[rd] respondent and along with the appeal, petitioner has also filedExt.P8, an application for stay. It is submitted that during thependency of the appeal, steps are being taken by therespondent authorities for recovering the amount in terms ofExt.P3. 2. Having regard to the fact that an appeal is pendingbefore the competent authority, I do not think it necessary toconsider the matter on merits. Suffice to say that the appellateauthority has to consider the stay application on merits withina specified time and in the meantime, the recovery can be keptin abeyance. Accordingly, this writ petition is disposed of as under: (i)The 3[rd] respondent shall consider the stay petitionfiled along with the appeal within a period of one month from the date of receipt of a copy of the judgment. (ii)In the meantime, the demand made in terms ofExt.P3 shall be kept in abeyance (iii)The respondent Bank shall keep in abeyance thepayment of the amount covered by the bank guarantee, whichshall be subject to the final orders passed by the appellateauthority. Sd/- A.M. SHAFFIQUE JUDGE