Cannanore County Club And Resorts Pvt. Ltd vs Assistant Commissioner Of State Tax State Goods And Service Tax Department And Ors

S.V. Bhatti, J

Petitioner is the appellant. The appellant filed Tax Appeal questioning the order dated 17.08.2019 of Deputy Commissioner (Appeals), SGST Department, Kozhikode in STA No.13 of 2018. The appellant moved stay petition, INTP No. 21 of 2019, before the Appellate Tribunal. The Appellate Tribunal through the order in Ext.P7 granted stay of recovery of amount covered by the subject matter of appeal, subject to the appellant depositing 30% of the modified demand and also on furnishing simple bond for the balance amount within one month from 14.02.2020. The appellant questioned the condition directing deposit of 30% of the amount covered by the modified order in W.P.(C) No.6614/2021. The learned Single Judge, through the judgment impugned in the appeal, disposed of the writ petition filed by the appellant with liberty to approach the Tribunal for instalments. Hence the Writ Appeal.

Adv. N. Muraleedharan Nair argues that the Tribunal is very right in granting stay of recovery of amount covered by the subject matter of appeal. However, imposition of 30% as condition precedent ignores the singular fact stated by the appellant. The condition ought to be deleted in toto or if at all one is required instead of 30% a reasonable condition to prove the bona fides of the appellant could have been imposed by the Appellate Tribunal.

Senior Government Pleader Mohammed Rafiq opposes the prayer, firstly, by arguing that the circumstances stated by the appellant are in no way relevant for stipulating the condition of 30% deposit of modified demand. If such conditions are interdicted, as a matter of course, then the recovery of tax is adversely affected in all the pending matters. Without prejudice and not recording a concession as made by him, he informs the Court that the reasons stated by appellant if weighs with the Court, instalments could be granted for depositing 30% of modified tax demand.

We have perused the record and noted the submissions of the counsel appearing for the parties. Prima facie, we are of the view that the Tribunal has rightly exercised the discretion, not only by granting the stay but has put the appellant on reasonable condition. In the case on hand, we would have certainly declined to exercise our jurisdiction under Article 227 of the Constitution for any purpose but for the fact that the appellant claims to have suffered substantial financial loss. Hence, we are satisfied condition in Ext.P7 could be modified as follows:

"The recovery proceedings are stayed till the disposal of the appeal subject to the condition the appellant deposits 30% of the modified demand in three equal instalments, the first instalment becoming due and payable on or before 30th of April 2021. The appellant furnishes simple bond for the balance amount on or before 30th April 2021".

The appellant commits default of one instalment, the stay granted by Ext.P7 and modified by this judgment would stand vacated. The Writ Appeal stands disposed of as indicated above.