2019 (11) TMI 1273 - HC - VAT and Sales Tax

Compliance with the pre-deposit - Validity of assessment order - petitioner would submit that Ext.P3 is a conditional order which does not give any reason for the direction to pay 20% of the disputed amount pending disposal of the appeal - HELD THAT - Ext.P3 order was passed after recording the fact that the authorized representative/appellant did not appear before the Deputy Commissioner (Appeals) when the stay petition was posted for hearing. If, under the said circumstance, the stay application had been dismissed by the appellate authority, then this Court would not have been inclined to interfere with such dismissal order, taking note of the absence of the petitioner at the time of hearing before the appellate authority. Notwithstanding the absence of the authorised representative/appellant, the first appellate authority directed a payment of only 20% of the disputed demand as a condition for stay of recovery of the balance amount pending disposal of the appeal. There are no erroneous exercise of discretion by the first appellate authority - The writ petition in its challenge against Ext.P3 order therefore fails and is accordingly dismissed - petition dismissed.

Summary

Issues: Challenge against conditional stay order, absence of authorized representative during hearing, discretion of the appellate authority

In the judgment delivered by the Kerala High Court, the petitioner challenged an Ext.P3 conditional stay order issued by the first appellate authority in relation to an appeal against an assessment under the Kerala Value Added Tax Act, 2003. The petitioner argued that the order did not provide any reason for the directive to pay 20% of the disputed amount during the appeal process. Reference was made to the decision in Archana Agencies v. Commercial Tax Officer [2014 (2) KHC 360]. The Court considered the submissions of both parties and noted that while typically it would have quashed the Ext.P3 order and remanded the matter for fresh consideration based on the Archana Agencies case, it found that the order was issued after the authorized representative of the appellant failed to appear before the Deputy Commissioner during the stay petition hearing. The Court highlighted that had the stay application been dismissed due to the absence of the petitioner, it would not have interfered. However, in this case, the first appellate authority decided to require payment of only 20% of the disputed demand as a condition for stay, which the Court deemed as a valid exercise of discretion. Consequently, the challenge against the Ext.P3 order failed, and the writ petition was dismissed.

Moreover, the Court acknowledged the petitioner's request for additional time to comply with the conditions of the Ext.P3 order. It directed that if the petitioner fulfills the conditions within a month from receiving a copy of the judgment, the payment would be considered as complying with the order. The judgment concluded by dismissing the writ petition with the exception of this specific modification. The petitioner was instructed to provide copies of the writ petition and the judgment to the respondent for further necessary actions.