SANGEETHA AGARWAL Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioner who is a dealer engaged in the business of trade in pulses is aggrieved by Ext.P19 order passed by the 4th respondent in stay applications preferred along with appeals that were preferred before the said respondent. It is pointed out that against Ext.P2 order of penalty and Ext.P3 order of assessment, Exts.P12 appeal and P13 stay petition were preferred before the 4th respondent appellate authority. Further, against Ext.P8 assessment order under the KVAT Act, Ext.P14 appeal and Ext.P15 stay petition were preferred before the 4th respondent. Lastly, against Ext.P10 assessment order under the CST Act, Ext.P16 appeal and Ext.P17 stay petition were also filed before the 4th respondent. It would appear that the stay petitions Exts.P13, P15 and P17 were considered together by the 4th respondent and by a common order dated 21.04.2014 which is produced as Ext.P19, the 4th respondent directed the petitioner to pay 30% of the outstanding demand as a condition for grant of stay of recovery of the balance amounts against the petitioner pending disposal of the appeals.

(2.) ON a perusal of the stay order, it is seen that while the Appellate Authority admits that there is a prima facie case established for the grant of a conditional stay, the order does not disclose the basis for insisting on the payment of even 30% of the dues conferred against the petitioner. In my opinion, a quasi judicial authority considering a stay application of an assessee under a taxation statute has to give reasons to support the order directing payment of any amount towards tax/interest pending disposal of the appeal. He has to bear in mind the Constitutional Mandate under Article 265 of the Constitution that there shall be no levy or collection of tax except by the authority of law. In taxation matters therefore, more than in any other matter, reasons must support not only the decision to waive payment of amounts due but also the decision that directs an assessee to make some payments pending consideration of the appeal. No doubt, this would require the adjudicating authority to look into the merits of the matter for the purposes of deciding the extent of waiver from payment that he can grant to an assessee while deciding the conditions for the grant of stay. This, however is a legal requirement that must be read into the exercise of the statutory discretion by the said authority.

(3.) FOR the reasons stated above, I feel that it would only be just and proper for this Court to set aside Ext.P19 order of the 4th respondent and direct the said respondent to consider Exts.P13, P15 and P17 stay applications preferred by the assessee afresh after affording him an opportunity of being heard in the matter. The 4th respondent shall comply with this direction within a period of two months from the date of receipt of a copy of this judgment. Needless to say, pending fresh consideration of the stay petition and communicating the order passed thereon to the assessee, coercive steps for recovery of the amounts due from the assessee pursuant to Exts.P2, P3, P8 and P10 assessment orders shall be kept in abeyance. With these directions, the writ petition is disposed of.