IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 11604 of 2010(A)
1. HINDUSTAN PETROLEUM CORPORATION LIMITED,
... Petitioner
Vs
1. ASSISTANT COMMISSIONER OF COMMERCIAL
... Respondent
2. DEPUTY COMMISSIONER (APPEALS),
3. INSPECTING ASSISTANT COMMISSIONER,
4. VAT APPELLATE TRIBUNAL,
For Petitioner :SRI.K.I.MAYANKUTTY MATHER
For Respondent : No Appearance
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :08/04/2010
O R D E R
P.R.RAMACHANDRA MENON, J.
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W.P.(C)No. 11604 OF 2010
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Dated this the 8th day of April, 2010
JUDGMENT
The petitioner is challenging the correctness and the
sustainability of the course pursued by the Departmental
Authorities in proceeding with coercive steps against the
petitioner, notwithstanding Ext.P2 order passed by the Appellate
Authority and notwithstanding the amount already satisfied by
the petitioner.
2. The learned counsel for the petitioner submits that the
impugned orders passed by the Assessing Authority have already
been challenged by filing appeal before the Tribunal along with
IAs for stay, wherein Ext.P12 common order has been passed,
whereby the petitioner has been directed to deposit ‘50%’ of the
demand pertaining to the three assessment years 2005 -06,
2006 -07 and 2007 – 08 and ‘25%’ of the demand relating to
the penalty proceedings for the three years on or before
30/3/2010 and to furnish security for the balance amount within
4 weeks.
3. The case of the petitioner is that the petitioner has
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already satisfied a sum of Rs. 1,82,16,198/- towards the
assessment demanded vide their letter dated 21/5/2009. It is
stated that as per the original order, the total amount
demanded for the three assessment years, inclusive of tax and
interest was Rs.2,41,97,117/-. 50% of the said demand works
out to Rs.1,20,98,559/-. This being the position, it is contended
that there is an excess deposit in respect of the 50% of the
demand and that the same could be given credit to in respect of
the disputed ‘penalty’ in satisfaction of the condition imposed by
the Tribunal. The petitioner preferred Ext.P13 representation
in this regard, which was disposed of by the Assessing Authority
as per Ext. P14, stating that the petitioner had to satisfy ‘50%’
of the ‘balance amount’ in respect of the assessment for three
years and ‘25%’ of the balance demand pertaining to ‘penalty’
for the three years.
4. The learned Government Pleader submits that the stand
taken by the petitioner is not correct or sustainable as it was not
50%/25% (as the case may be), of the entire outstanding
liability, but 50% / 25% of the ‘balance amount’ as clearly
stated in the last paragraph of Ext.P12.
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5. The learned counsel for the petitioner submits that the
basic point as to the issue involved was not properly considered
by the Appellate Authority while passing the conditional order
and if the merit was considered, absolutely no liability would
have been there.
6. The issue projected before the Tribunal, as discussed
in the last paragraph of Ext.P12, is whether the petitioner is
entitled to the ‘input tax credit’ for the purchase value of the
goods which are later sold at a subsidized price. It is observed
by the Tribunal that, this issue is to be decided in the light of the
provisions contained in the ‘2nd proviso’ to sub section Section
(3) Section 11 of the Act. With regard to the appeals relating to
the levy of penalty the issue is whether the penalty, is justified
for non payment of interest. Both these issues involve only
questions of law and not a question of fact, which ought to have
been considered by the Tribunal.
7. Taking note of the facts and circumstances, the 4th
respondent is directed to consider and pass final orders on Ext.P5
to P10 appeals preferred by the petitioner in respect of the
assessment orders regarding the fixation of liability as well as
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penalty, in accordance with law, as expeditiously as possible, at
any rate within three months from the date of receipt of a copy of
this judgment. The petitioner will continue to enjoy the benefit
of the interim stay granted vide Ext.P12, subject to the
condition that the petitioner satisfies ‘25% of the balance
liability’ both in respect of the assessment as well as the penalty,
simultaneously furnishing security for the balance amount, which
shall be satisfied within a period of two weeks. Subject to this, all
further recovery proceedings shall be kept in abeyance till the
finalisation of the appeals as directed above.
The Writ Petition is disposed of as above.
P.R.RAMACHANDRA MENON,
JUDGE.
dpk