2018 (12) TMI 1009 - HC - VAT and Sales Tax

Imposition of penalty - section 67(1) of the KVAT Act - assessment year 2009-2010 - Held that - Indeed, the proviso is unambiguous, and it only insists that the appellant should remit 20 per cent. of the disputed tax to have the further proceedings stayed till the disposal of the appeal. There is no room for the authorities to insist that the petitioner, in addition, should provide any security-be it a solvency certificate or a simple bond. Under those circumstances, the demand cannot be sustained. Petition disposed off.

Summary

Issues:
Penalty proceedings under section 67(1) of the KVAT Act for the assessment year 2009-2010; Interpretation of conditions for staying penalty amount; Requirement of providing security in penalty proceedings; Applicability of section 55(4) in the appeal process.

Analysis:
The petitioner, a registered dealer under the KVAT Act, faced penalty proceedings for the assessment year 2009-2010. The appellate authority issued an order staying the penalty amount collection subject to the condition that the appellant pays 20% of the demand and provides sufficient security for the remaining balance amount within one month. The petitioner filed a writ petition challenging this condition, arguing that complying with the security condition was not necessary as per the law. The court refused to interfere with the appellate order but allowed the petitioner to pay 20% of the disputed tax in three monthly installments. However, the authorities insisted on a solvency certificate for the balance tax, leading the petitioner to file another writ petition.

In response to the petitioner's submissions, the Government Pleader argued that the condition of providing security existed at the time of the previous writ petition and should have been challenged then. She emphasized that peaceful adjudication was necessary and invoked the issue estoppel doctrine. The petitioner's counsel contended that they were unaware of the specific means through which the security condition would be enforced when filing the previous petition. They also highlighted the Department's inconsistent actions in similar cases, where only a simple bond was required by the appellate authority.

The court examined section 55(4) of the KVAT Act, which governs the stay in an appeal and the preconditions for the appellant. The court noted that the proviso under this section clearly stated that remitting 20% of the disputed tax was sufficient to stay further proceedings until the appeal's disposal. The court found no justification for the authorities to demand additional security such as a solvency certificate or a simple bond from the petitioner. Consequently, the court modified the earlier order, setting aside the requirement for providing security and disposing of the writ petition in favor of the petitioner.