M/S.Whirlpool of India Ltd Vs. the State of Kerala - Court Judgment

SooperKanoon Citationsooperkanoon.com/1009699
CourtKerala High Court
Decided OnJan-16-2013
JudgeHONOURABLE MR.JUSTICE ANTONY DOMINIC
AppellantM/S.Whirlpool of India Ltd
RespondentThe State of Kerala
Excerpt:
in the high court of kerala at ernakulam present: the honourable mr.justice antony dominic wednesday, the 16th day of january 2013 26th pousha 193 wp(c).no. 1352 of 2013 (t) -------------------------------------- petitioner: ------------------- m/s.whirlpool of india ltd., no.xv iii/10a, st.joseph minor seminary, cochin university p.o., s.kalamasserry”022. represented by it's branch commercial manager mr.ashok .p. by adv. smt.k.latha. respondents: ----------------------- 1. the state of kerala, representede by chief secretary to the government of kerala, secretariat, thiruvananthapuram ”001. 2. asst.commissioner(assmt)., kvat special circle ii, commercial taxes, ernakulam”017. 3. deputy commissionere (appeals), commercialt axesm ernakulam”017. 4. the inspecting asst. commissioner, commercial taxes, kakkanad, ernakulam”032. by sr. government pleader sri. manoj kunjachan. this writ petition (civil) having come up for admission on 16-01-2013, the court on the same day delivered the following: prv. w.p.(c). no.1352/2013-t: appendix petitioner's exhibits: ext.p1: the true copy of the notice under section 6 of the kvat act 200.dated 19 11-2012 issued by the second respondent to the petitioner. ext.p2: the true copy of the assessment order for the year 2009 2010 dated 7 12-2012 issued by the second respondent to the petitioner. ext.p3: the true copy of the appeal in form no 2.and the statement of facts and modified grounds of appeal filed by the petitioner before the third respondent against the p2 assessment order. ext.p4: the true copy of the revenue recovery notice form 3 prohibitory order issued by the third respondent to the petitioner dated 21 12-2012. ext.p5: the true copy of the stay order no kvata 3279 2012 dated 26 12-2012 issued by the third respondent to the petitioner. ext.p6: the true copy of the letter of commissioner commercial taxes no c7 10260/12/ct dated 8 05-2012 stating that non csd canteen are also allowable for the claim u/s 6(1) (a) of the kerala value added tax act 2003.ext.p7: the true copy of the clarification u/s 9.of the of the kerala value added tax act 200.order no c3/20085/11/ct dated 30 11-2012. respondents' exhibits: nil. //true copy// p.a. to judge prv. antony dominic, j.-------------------------------------------------- w.p.(c) no.1352 of 2013(t) -------------------------------------------------- dated this the 16th day of january, 2013 judgment petitioner challenges ext.p5. by this order stay was granted on the petitioner remitting an amount of rs.25 lakhs and furnish security for the balance amount. assessment against the petitioner for the year 2009-2010 was completed. that order was rectified and ext.p2 order was issued. as per this order the liability of the petitioner was rs.2,62,94,339/-. against this order petitioner filed ext.p3 appeal along with a stay petition. meanwhile, recovery proceedings were initiated for recovering the tax due from the petitioner. thereupon the appellate authority heard the stay petition and has passed ext.p5 order granting stay as mentioned above.2. contention raised by the counsel for the petitioner is that the appellate authority has not taken note of exts.p6 and p7 clarifications. in my view, relevance of exts.p6 and p7 arises only when the appeal is taken up for final hearing. a reading of wpc.no. 1352/2013 :2 : ext.p5 shows that the appellate authority was satisfied about the prima facie case made out by the petitioner. it is on that basis stay has been granted.3. the question remaining is whether the condition imposed by the appellate authority is an arbitrary one ext.p4, the prohibitory order issued under the revenue recovery act shows that the total amount due from the petitioner was rs.2,86,91,473/-. it is out of the said amount that rs.25 lakhs is ordered to be paid. it is less than 10% of the amount payable by the petitioner. this amount, by no stretch of imagination, could be said to be excessive. therefore i am not inclined to interfere with the condition imposed.4. counsel then contended that they should be permitted to furnish a simple bond towards the security ordered by the appellate authority in ext.p5 order. the appellate authority has directed to furnish security, which should be in compliance with the provisions of the kvat rules. therefore i am not inclined to issue any direction as sought for. wpc.no. 1352/2013 :3 :5. at this stage counsel for the petitioner requested for two days time to comply with ext.p5. taking note of this, i direct that if the petitioner complies with ext.p5 order before 19.1.2013 that will be accepted as made in compliance with ext.p5 order. writ petition is disposed of as above. (antony dominic) judge vi/
Judgment:

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC WEDNESDAY, THE 16TH DAY OF JANUARY 2013 26TH POUSHA 193 WP(C).No. 1352 of 2013 (T) -------------------------------------- PETITIONER: ------------------- M/S.WHIRLPOOL OF INDIA LTD., NO.XV III/10A, ST.JOSEPH MINOR SEMINARY, COCHIN UNIVERSITY P.O., S.KALAMASSERRY”

022. REPRESENTED BY IT'S BRANCH COMMERCIAL MANAGER MR.ASHOK .P. BY ADV. SMT.K.LATHA. RESPONDENTS: ----------------------- 1. THE STATE OF KERALA, REPRESENTEDE BY CHIEF SECRETARY TO THE GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM ”

001.

2. ASST.COMMISSIONER(ASSMT)., KVAT SPECIAL CIRCLE II, COMMERCIAL TAXES, ERNAKULAM”

017.

3. DEPUTY COMMISSIONERE (APPEALS), COMMERCIALT AXESM ERNAKULAM”

017. 4. THE INSPECTING ASST. COMMISSIONER, COMMERCIAL TAXES, KAKKANAD, ERNAKULAM”

032. BY SR. GOVERNMENT PLEADER SRI. MANOJ KUNJACHAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Prv. W.P.(C). NO.1352/2013-T: APPENDIX PETITIONER'S EXHIBITS: EXT.P1: THE TRUE COPY OF THE NOTICE UNDER SECTION 6 OF THE KVAT ACT 200.DATED 19 11-2012 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER. EXT.P2: THE TRUE COPY OF THE ASSESSMENT ORDER FOR THE YEAR 2009 2010 DATED 7 12-2012 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER. EXT.P3: THE TRUE COPY OF THE APPEAL IN FORM NO 2.AND THE STATEMENT OF FACTS AND MODIFIED GROUNDS OF APPEAL FILED BY THE PETITIONER BEFORE THE THIRD RESPONDENT AGAINST THE P2 ASSESSMENT ORDER. EXT.P4: THE TRUE COPY OF THE REVENUE RECOVERY NOTICE FORM 3 PROHIBITORY ORDER ISSUED BY THE THIRD RESPONDENT TO THE PETITIONER DATED 21 12-2012. EXT.P5: THE TRUE COPY OF THE STAY ORDER NO KVATA 3279 2012 DATED 26 12-2012 ISSUED BY THE THIRD RESPONDENT TO THE PETITIONER. EXT.P6: THE TRUE COPY OF THE LETTER OF COMMISSIONER COMMERCIAL TAXES NO C7 10260/12/CT DATED 8 05-2012 STATING THAT NON CSD CANTEEN ARE ALSO ALLOWABLE FOR THE CLAIM U/S 6(1) (A) OF THE KERALA VALUE ADDED TAX ACT 2003.EXT.P7: THE TRUE COPY OF THE CLARIFICATION U/S 9.OF THE OF THE KERALA VALUE ADDED TAX ACT 200.ORDER NO C3/20085/11/CT DATED 30 11-2012. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE Prv. ANTONY DOMINIC, J.

-------------------------------------------------- W.P.(C) NO.1352 OF 2013(T) -------------------------------------------------- Dated this the 16th day of January, 2013 JUDGMENT

Petitioner challenges Ext.P5. By this order stay was granted on the petitioner remitting an amount of Rs.25 lakhs and furnish security for the balance amount. Assessment against the petitioner for the year 2009-2010 was completed. That order was rectified and Ext.P2 order was issued. As per this order the liability of the petitioner was Rs.2,62,94,339/-. Against this order petitioner filed Ext.P3 appeal along with a stay petition. Meanwhile, recovery proceedings were initiated for recovering the tax due from the petitioner. Thereupon the appellate authority heard the stay petition and has passed Ext.P5 order granting stay as mentioned above.

2. Contention raised by the counsel for the petitioner is that the appellate authority has not taken note of Exts.P6 and P7 clarifications. In my view, relevance of Exts.P6 and P7 arises only when the appeal is taken up for final hearing. A reading of WPC.No. 1352/2013 :2 : Ext.P5 shows that the appellate authority was satisfied about the prima facie case made out by the petitioner. It is on that basis stay has been granted.

3. The question remaining is whether the condition imposed by the appellate authority is an arbitrary one Ext.P4, the prohibitory order issued under the Revenue Recovery Act shows that the total amount due from the petitioner was Rs.2,86,91,473/-. It is out of the said amount that Rs.25 lakhs is ordered to be paid. It is less than 10% of the amount payable by the petitioner. This amount, by no stretch of imagination, could be said to be excessive. Therefore I am not inclined to interfere with the condition imposed.

4. Counsel then contended that they should be permitted to furnish a simple bond towards the security ordered by the appellate authority in Ext.P5 order. The appellate authority has directed to furnish security, which should be in compliance with the provisions of the KVAT Rules. Therefore I am not inclined to issue any direction as sought for. WPC.No. 1352/2013 :3 :

5. At this stage counsel for the petitioner requested for two days time to comply with Ext.P5. Taking note of this, I direct that if the petitioner complies with Ext.P5 order before 19.1.2013 that will be accepted as made in compliance with Ext.P5 order. Writ petition is disposed of as above. (ANTONY DOMINIC) JUDGE vi/