SHAIOB MOHAMMED S/O MOHAMMED ASHRAFF Vs. STATE OF KERALA REPRESENTED BY THE SECRETARY TAXES GOVT SECRETARIAT THIRUVANANTHAPURAM

JUDGEMENT

(1.) This Writ Appeal is filed against the judgment of the learned Single Judge declining to interfere with the conditional stay order issued by the appellate authority vide Ext. P13 order directing payment of Rs. 4 lakhs and furnishing of security for the balance amount as condition for staying recovery of KVAT dues for the years 2007-08, 2008-09 and 2010-2011. We have heard learned counsel for the appellant and also learned Senior Government Pleader for the respondents.

(2.) The appellant was under the impression that revision will lie against the conditional stay order issued by the Deputy Commissioner of Commercial Taxes (Appeals) before the Deputy Commissioner. Therefore, a revision petition was filed against the conditional stay order before the said authority and a direction is sought from this Court for disposal of the revision petition filed against the conditional stay order. The learned Single Judge declined to grant the relief and hence this Writ Appeal is filed raising this ground as well.

(3.) After hearing the appellant and the learned Senior Government Pleader and on going through the statutory provisions, we are unable to uphold the appellant's contention that a revision under Section 57 is maintainable against conditional stay order issued by the Deputy Commissioner under Section 55(4) of the KVAT Act. Revisions visualized under Section 57 are essentially against non appealable orders or orders against which specific provision for appeal is not provided in the Act. Demand of tax and interest is based on assessment against which a statutory appeal is provided under Section 55. Section 55(4)(1) provides for payment of tax in terms of the demand irrespective of whether appeal is preferred or not. However, the proviso to the said section gives power to the appellate authority to issue such directions in regard to payment during pendency of the appeal under which power the appellate authority can grant stay subject to whatever conditions he deems fit. Orders issued under Section 55(5) disposing of the appeals filed before the Deputy Commissioner are appealable to the Tribunal in another round under Section 60 of the Act. However, the justification of the Tribunal is limited to final orders in appeal issued under Section 55(5) which means that conditional stay orders or orders rejecting stay applications are not appealable to the Tribunal. So far as the revision is concerned, scheme of the Act is such that revision before the Deputy Commissioner or Commissioner under Section 58 or under Section 59 respectively are against orders of the lower authorities. In other words, no revision will lie before the Deputy Commissioner against the order issued by the same authority or appellate Deputy Commissioner of co-ordinate jurisdiction. So far as Section 59 is concerned, even though Deputy Commissioner's orders are subject to revision before the Commissioner, it specifically excludes orders issued by the Deputy Commissioner (Appeals) in exercise of appellate power under Section 55. So much so, no statutory remedy is available against orders declining stay applications or conditional stay orders issued by the Deputy Commissioner under Section 55(4). The only remedy available is judicial review under Articles 226 and 227 of the Constitution of India before the High Court. So much so, the revision filed by the appellant against the conditional stay orders issued by the Deputy Commissioner (Appeals) before another Deputy Commissioner is misconceived and is not tenable as the Deputy Commissioner has no jurisdiction.