Challenging the assessment finalised by the concerned respondent and the penalty imposed upon the petitioner, statutory remedy was availed by filing appeal before the 2nd respondent. In view of the coercive proceedings taken in the meanwhile, the petitioner was constrained to approach this Court in filing W.P(C) No. 23213/2014, which was disposed of as per Ext.P8 judgment dated 02.09.2014, directing the Appellate Authority to consider and pass appropriate orders in the stay petition. After considering the Interlocutory Applications for stay, a common interim order was passed by the 2nd respondent vide Ext.P2 dated 14.10.2014, directing the petitioner to satisfy 30% of the disputed liability so as to avail the benefit of interim stay during pendency of the appeal. This in turn is under challenge in this writ petition.
2. The first respondent has filed a statement seeking to justify the coercive proceedings.
3. The learned counsel for the petitioner submitted that there is absolutely no discussion in Ext.P2 order passed W.P.C NO. 28237 OF 2014 2 by the Appellate Authority with regard to the various contentions raised by the petitioner. It is pointed out that, the petitioner was a 'presumptive dealer' and was satisfying the tax accordingly. According to the petitioner, the ceiling never crossed the limit of 60 lakhs. The Assessing Authority on the other hand, made some astrological assumptions and fixed the turnover, so as to have it carried above 60 lakhs and finally, made the assessment, also imposing penalty. It is stated that, even if there is an excess beyond the limit prescribed, only the residual portion (in so far as the same has exceeded, the statutory limit above the presumptive level) can be taxed with the higher rate. It is also pointed out that, by virtue of amendment to the statute incorporated under Section 25(C) with effect from 01.04.2005, the petitioner is entitled to get the benefit of input tax credit, which has been denied to the petitioner. This aspect has not been considered anywhere either by the Assessing Authority or by the Appellate Authority.
4. The learned Government Pleader appearing for the respondents submits that, the idea and understanding of the petitioner as to the scope of the proceedings is quite wrong and unfounded. It is stated that law stands declared by this W.P.C NO. 28237 OF 2014 3 Court, holding that, once the ceiling is crossed, the entire turnover is liable to be taxed at the specified rate and such a person loses his colour, characters and identity as a presumptive tax dealer. The learned Government Pleader also pointed out that, in spite of giving a chance to the petitioner to submit necessary objections, he did not turn up for the hearing and the opportunity was not properly utilized as discernible from the impugned order.
5. After hearing both the sides and after going through the records, this Court finds that, though, the petitioner has raised various contentions in the appeal, there is no discussion at all when a condition was imposed by the Appellate Authority vide Ext.P2, directing the petitioner to satisfy 30% of the disputed liability so as to available the benefit of stay. This Court also finds that, in respect of total turnover fixed at Rs.61,78,579/- lakhs, the petitioner is made to satisfy more than 33 lakhs as tax and penalty. As such, the matter requires to be considered in detail. This is more so, in view of the law declared by the Apex Court as per the decision rendered in Ravi Gupta v. The Commissioner of Sales Tax, Delhi & another, (2009)22 VST 529 and also by this Court in Archana Agencies v. Commercial Tax Officer, W.P.C NO. 28237 OF 2014 4 2014(2) KLT 715 that speaking orders have to be passed so as to sustain the condition.
Accordingly, Ext.P12 is set aside and second respondent is directed to re-consider the matter and pass appropriate orders in accordance with law,as expeditiously as possible at any rate, within 'two weeks' from the date of receipt of a copy of this judgment. Coercive proceedings shall be kept in abeyance till such time. The petitioner shall produce a copy of the judgment, along with a copy of the writ petition, before the second respondent for further steps.
The writ petition is disposed of.
Sd/-P.R.RAMACHANDRA MENON, Judge lsn