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TMI Blog2015 (9) TMI 1513X X X X Extracts X X X X X X X X Extracts X X X X ..... y Commissioner (Appeals) and Assistant Commissioner (Appeals), arising out of orders issued under sub-sections (8) and (9) of Section 44, Section 67, etc., an exception is carved out in the third proviso to sub-section (1) of Section 55 of the KVAT Act, by providing that the pending appeal shall stand transferred to the appropriate authority under the KVAT Act and such authority shall consider the same as if it is an appeal filed before it. Writ petition is disposed of setting aside Ext.P6 communication issued by the 4th respondent and directing the said respondent to take back Ext.P5 appeal on the files of the Kerala Value Added Tax Appellate Tribunal and to post the same for hearing by the Bench of the Tribunal, treating Ext.P3 order passed by the 2nd respondent as one arising out of an appeal filed under sub-section (1) of Section 55 of the KVAT Act, in view of the third proviso to Section 55 of the said Act - decided in favor of petitioner. - WP(C).No. 20229 of 2015 (C) - - - Dated:- 16-9-2015 - Mr. Anil K.Narendran, J. M. Gopikrishnan Nambiar, P. Gopinath, P. Benny Thomas, K. John Mathai, Joson Manavalan and Kuryan Thomas for the petitioner S. Sudheesh Kumar, S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egularity, the petitioner filed Ext.P4 rectification petition, under Section 66 of the KVAT Act, pointing out that, in view of the third proviso to Section 55 of the KVAT Act, the 2 nd respondent ought to have disposed of Ext.P2 as if it is an appeal filed before it. 4. Though the 2nd respondent heard Ext.P4 rectification petition on 21.5.2015, no orders were passed. In view of the time limit prescribed under Section 60 of the KVAT Act for filing appeal, the petitioner filed Ext.P5 appeal before the Appellate Tribunal on 11.5.2015. However, the same was returned along with Ext.P6 communication dated 18.5.2015 of the 4 th respondent, stating that the petitioner has to move a revision before the Commissioner, Commercial Taxes, under Section 59 of the KVAT Act, against Ext.P3 order passed by the 2nd respondent. Aggrieved by Ext.P6, the petitioner is before this Court in this writ petition seeking various reliefs. 5. A counter affidavit has been filed by the 2 nd respondent supporting the stand taken by the 4th respondent in Ext.P6 that, in order to challenge Ext.P3 order, the petitioner has to move a revision before the Commissioner, Commercial Taxes, under Section 59 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9) of Section 44, Section 49, Section 67, Section 68, Section 69 and Section 70 . Similarly, the figures and words 48, 49, 67, 69, 70, 70A and 72 in the first proviso to sub-section (1) of Section 55 have been substituted by the figures and words 48, 70A and 72 . Further, a proviso has been inserted after the second proviso to sub-section (1) of Section 55. Section 55 of the KVAT Act after its amendment reads thus; 55 . Appeals to the Deputy Commissioner (Appeals) and Assistant Commissioner (Appeals):- (1) Any person aggrieved by any order issued or proceedings recorded * [other than those under section 16, section 19, sub sections (8) and (9) of section 44, section 49, section 67, section 68, section 69 and section 70] passed by an authority empowered to do so under this Act not being an authority above the rank of an Assistant Commissioner may, within a period of thirty days from the date on which the order was served on him, appeal against such order, (i) to the Deputy Commissioner (Appeals), if the order was passed by an authority of the rank of an Assistant Commissioner; and (ii) to the Assistant Commissioner (Appeals), if the order was passed by an authority of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n (1) of Section 55 of the KVAT Act. 11. On noticing the irregularity in Ext.P3 order passed by the 2nd respondent, the petitioner filed Ext.P4 rectification petition under Section 66 of the KVAT Act, pointing out that, in view of the third proviso to Section 55 of the KVAT Act the 2 nd respondent ought to have disposed of Ext.P2 appeal as if it is an appeal filed before it. Since no orders were passed on the said application, the petitioner filed Ext.P5 appeal before the Appellate Tribunal on 11.5.2015, within the prescribed time limit of 60 days. However, the said appeal was returned along with Ext.P6 communication dated 18.5.2015 of the 4th respondent, stating that the petitioner has to move a revision before the Commissioner, Commercial Taxes, under Section 59 of the KVAT Act. The aforesaid reasoning of the 4th respondent in Ext.P6 is also legally per se illegal and even contrary to the third proviso to Section 55 of the KVAT Act. 12. On 6.7.2015, when this writ petition came up for admission, this Court directed the learned Government Pleader to get instructions and the matter was posted after ten days. Thereafter, on 20.7.2015, this Court issued 'notice on admissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench of the Tribunal, treating Ext.P3 order passed by the 2nd respondent as one arising out of an appeal filed under sub-section (1) of Section 55 of the KVAT Act, in view of the third proviso to Section 55 of the said Act. 15. The learned counsel for the petitioner would submit that, when the matter was pending before the first appellate authority, the petitioner has deposited a sum of ₹ 2,18,781/- being 25% of the disputed penalty. The learned counsel for the petitioner would submit further that, the petitioner is prepared to furnish bank guarantee for the remaining portion of penalty and that, till Ext.P5 appeal is resubmitted before the Tribunal, which also contains an application for stay, all recovery proceedings pursuant to Ext.P1 penalty order, which is confirmed in Ext.P3 order may be kept in abeyance. 16. Considering the facts and circumstances of the case, I deem it appropriate to stay of all recovery proceedings pursuant to Ext.P1 and P3 orders for a period of two months on the petitioner furnishing bank guarantee for 75% of the penalty amount, within a period of two weeks from the date of receipt of a certified copy of this judgment, so as to enable the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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