Case Law Details
K.T. Joseph Vs Deputy Commissioner of State Tax (Kerala High Court)
Disposing writ petition in K T Joseph Vs. Deputy Commissioner of State Tax & Ors, the Hon’ble high Court of Kerala has observed that initiating recovery proceedings even before the expiry of the said period will make the appeal practically redundant. The petitioner herein was a registered dealer under the Kerala Value Added Tax Act, 2003. For the AY 2016-2017, an order of assessment was issued against the petitioner under the said Act, against which an appeal was preferred before the 1st appellate authority. Though the first appeal was dismissed, by order dated 30.12.2021 which was served on him only on 22.02.2022 and he has a period of 60 days from the date of receipt of the order to prefer a second appeal before the Tribunal. However, even before the period for preferring the appeal expired, respondents initiated recovery proceedings and froze the bank account of the petitioner. On writ petition being filed it is proclaimed by the Hon’ble Court that, it is essential in the interest of justice that proceedings for recovery be initiated only after expiry of the period for filing the appeal. Since the petitioner was served with the order of the first appellate authority only on 22.02.2022, the period for filing the appeal will expire only on 21.04.2022. Initiating recovery proceedings even before the expiry of the said period will make the appeal practically redundant.
FULL TEXT OF THE JUDGMENT/ORDER OF KERALA HIGH COURT
Petitioner is aggrieved by the orders issued by the 3rd respondent freezing the bank accounts of the petitioner as directed by the Deputy Commissioner of State Tax, Idukki, evident from Ext.P4.
2. Petitioner was a registered dealer under the Kerala Value Added Tax Act, 2003. For the assessment year 2016-2017, an order of assessment was issued against the petitioner, against which an appeal was preferred before the 1 st appellate authority. Though the first appeal was dismissed, by order dated 30.12.2021, petitioner intends to prefer a second appeal before the Kerala State Value Added Appellate Tribunal and is according to the counsel, taking earnest steps.
3. The learned counsel for the petitioner submitted that the order of the first appellate authority was served on the petitioner only on 22.02.2022 and he has a period of 60 days from the date of receipt of the order to prefer an appeal. It was also contended that even before the period for preferring the appeal expired, respondents initiated recovery proceedings and froze the bank account, thereby crippling
4. petitioner’s entire business activity. The learned counsel also relies upon the decision of this Court in W.P.(C) No.6107/2014 wherein, observations were made to the effect that the recovery proceedings should not be initiated till the period for filing an appeal is over.
5. Thushara James, learned Senior Government Pleader on the other hand contended that the decision in W.P.(C) No.6107/2014 related to a provident fund matter and may not stricto sensu be applicable to the issue involved in this case.
6. Considering the circumstances and after bearing in mind the contentions raised by the learned counsel for the petitioner as well as the respondents, I am of the view that, it is essential in the interest of justice that proceedings for recovery be initiated only after expiry of the period for filing the appeal. Since the petitioner was served with the order of the first appellate authority only on 22.02.2022, as contended by the learned counsel for the petitioner, the period for filing the appeal will expire only on 21.04.2022. Initiating recovery proceedings even before the expiry of the said period will make the appeal practically redundant.
In view of the above, it is ideal that the recovery proceedings are not proceeded with till 21.04.2022 so as to enable the petitioner to move the appellate authority. Accordingly, the prohibitory order issued by the first respondent, in respect of the petitioner as communicated by the 3rd respondent to the petitioner by letter dated 17.03.2022 shall be kept in abeyance for a period till 21.04.2022.
7. It is clarified that if the petitioner files an appeal as well as a stay petition before 21.04.2022, then the prohibitory order shall continue until the stay petition is considered or two months thereafter, whichever is earlier.
With the above observations, the writ petition is disposed of.
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Author/Blogger: Aji V. Dev, Advocate, High Court of Kerala at Aji V. Dev & Associates, Ernakulam, Kochi, available at [email protected]/[email protected]/9447788404.
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