IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 10TH NOVEMBER 2011 / 19TH KARTHIKA 1933 WP(C).No. 29925 of 2011(M) ----------------------------------------- PETITIONER(S): ---------------------- COCHIN SHIPYARD LIMITED, PERUMANOOR P.O., COCHIN- 682 015, REPRESENTED BY ITS DIRECTOR (FINANCE) MR. RAVIKUMAR RODDAM. BY ADV. SRI.E.K.NANDAKUMAR, SRI.JOHN MATHAI K., SRI.BENNY P.THOMAS, SRI.P. GOPINATH MENON. RESPONDENT(S): --------------------------- 1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT TAXES DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM -695 001. 2. ASSISTANT COMMISSIONER (ASSMT.), SPECIAL CIRCLE II, DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM, KOCHI -682 015. 3. THE DEPUTY COMMISSIONER (APPEALS), ERNAKULAM, DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM, KOCHI- 682 015. 4. THE INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAXES, ERNAKULAM, KOCHI- 682 030. R1 TO R4 BY GOVT. PLEADER (TAXES) MR.SOJAN JAMES. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/11/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs WP(C).No. 29925 of 2011(M) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE SHIPPING BILL DT.19.7.2007 EXT.PI(A) TRUE COPY OF THE SAMPLE SHIPPING BILL DT.11/10/2007. EXT.P2 TRUE COPY OF THE PROVISIONAL REGISTRATION CERTIFICATE ISSUED BY THE CYPRUS REGISTRY, DT.28.3.2007. EXT.P2(A) TRUE COPY OF THE PROVISIONAL REGISTRATION CERTIFICATE ISSUED BY THE CYPRUS REGISTRY, DT. 04.09.2007. EXT.P3 TRUE COPY OF THE NOTICE DT. 22.11.2010, ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT. EXT.P4 TRUE COPY OF THE REPLY DT. 7.2.2011 SENT BY THE PETITIONER TO THE 2ND RESPONDENT. EXT.P5 TRUE COPY OF THE ORDER DT. 1.7.11 PASSED BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P6 TRUE COPY OF THE CLARIFICATION DT. 8.2.2010 ISSUED BY THE AUTHORITY FOR CLARIFICATION, DEPARTMENT OF COMMERCIAL TAXES TO THE PETITIONER. EXT.P7 TRUE COPY OF THE APPEAL , WITHOUT ANNEXURES, FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DT. 16.9.2011. EXT.P8 TRUE COPY OF THE STAY PETITION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DT. 16.9.2011. EXT.P9 TRUE COPY OF THE REVENUE RECOVERY NOTICE DT. 19.10.2011 (SERVED ON THE PETITIONER ON 27.10.2011) ISSUED TO THE PETITIONER BY THE 4TH RESPONDENT. EXT.P10 TRUE COPY OF THE ORDER DT. 13.10.2011 PASSED BY THE 3RD RESPONDENT TO THE PETITIONER. EXT.P11 TRUE COPY OF THE ORDER DT. 30.01.2010 PASSED BY THE INTELLIGENCE OFFICER (IB) COMMERCIAL TAXES, ERNAKULAM TO THE PETITIONER. EXT.P12 TRUE COPY OF THE JUDGMENT DT.23.12.2010 OF THIS HON'BLE COURT IN WPC 38624 OF 2010 ISSUED TO THE PETITIONER. EXT.P13 TRUE COPY OF THE ORDER DT. 5.7.2011 PASSED BY THE KERALA VALUE ADDED TAX APPELLATE TRIBUNAL TO THE PETITIONER. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE rs S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.29925 of 2011 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of November, 2011 J U D G M E N T The petitioner is aggrieved by Ext.P10 order passed by the appellate authority under the Kerala Value Added Tax Act, 2003, the 3rd respondent herein in KVATA No.2573/2011, wherein a conditional stay was granted directing the petitioner to pay 1/3rd of the total demand and to furnish adequate security for the balance amount. The petitioner's grievance is that, the issue involved is a pure question of law in respect of which there is no precedent. The petitioner further points out that, the Kerala Value Added Tax Appellate Tribunal, Ernakulam has by Ext.P13 order granted an absolute stay in respect of the same question in another appeal. The petitioner further points out that, in W.P.(C) No.22322/2010, this Court has directed disposal of similar appeals directing to keep coercive proceedings for recovery of the disputed tax in abeyance on condition that the petitioner furnishes sufficient security in respect of the disputed amounts. According to the W.P.(C)No.29925 of 2011 -2- petitioner, Ext.P10 order has been passed without taking into account any of these aspects, mechanically. The petitioner therefore seeks the following reliefs: “i) call for the records leading to Exhibit P10 order passed by the 3rd respondent, and quash the same, to the extent it directs the petitioner to pay 1/3rd of the total demand in Exhibit P5 order as condition for the grant of stay of recovery of the balance amount, by the issuance of writ of certiorari or such other writ, order or direction; ii) issue a writ of mandamus or such other writ, order or direction, directing the 3rd respondent to consider and pass orders on Exhibit P7 appeal preferred by the petitioner, without insisting payment of any portion of the tax demanded in Exhibit P5 assessment order; iii) issue a writ of mandamus or such other writ, order or direction, directing the 2nd and 4th respondents not to initiate any coercive steps for recovery of the amount covered by Exhibit P5 order and Exhibit P9 revenue recovery notice, pending disposal of the writ petition.” 2. I have heard the learned Government Pleader also. In view of the orders of the Tribunal and this Court, I am of opinion that in respect of the amounts covered by the question of law, the petitioner is entitled to full stay. But even going by the petitioner's averments only 98% of the total demand is covered by the said question of law. In the above circumstances, this writ petition is disposed of as follows: W.P.(C)No.29925 of 2011 -3- Ext.P10 order is quashed. The 3rd respondent is directed to dispose of KVATA No.2573/2011, as expeditiously as possible. Till disposal of the appeal, further proceedings for recovery of the disputed tax will be kept in abeyance on condition that the petitioner pays Rs.80,00,000/- (Rupees eighty lakhs only) within one month and furnishes adequate security for the balance to the satisfaction of the 2nd respondent. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/