IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 37385 of 2009(P)
1. JOSEPH JOSE, PROPRIETOR,
... Petitioner
Vs
1. THE COMMERCIAL TAX OFFICER (VAT),
... Respondent
2. THE SALES TAX APPELLATE TRIBUNAL,
For Petitioner :SRI.V.P.SUKUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :08/01/2010
O R D E R
P.R.RAMACHANDRA MENON, J
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W.P(C) No.37385 of 2009 -P
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Dated this the 8th day of January, 2010.
J U D G M E N T
Challenging Exts.P1 to P3 assessment orders, the petitioner
has preferred Exts.P8 and P9 appeals before the second respondent.
However, since the assessment was under Section 17D of the KGST
Act, as per the stipulation under sub Section 5 of Section 17(D), the
entire tax amount fixed by the assessing authority has to be
satisfied for entertaining the appeal. The petitioner preferred the
appeals, seeking permission from the first respondent/assessing
authority to satisfy the liability by instalments. After considering
the same, it was rejected by the authority by Ext.P7, stating that the
said authority does not have any power, competence or jurisdiction
to entertain the same; which hence is under challenge in this Writ
Petition.
2. The learned counsel for the petitioner submits that the
petitioner is ready and willing to satisfy the statutory requirement,
so as to have the appeal entertained; but the fact that he only
wanted some breathing time to effect the payment, for which the
W.P(C) No.37385 of 2009 -P 2
instalment facility was sought for.
3. The learned counsel appearing for the respondent
submits that the liability cast upon the concerned person is very
much statutory and that the same cannot be varied or watered down
in any manner. Unless and until the pre-requisite under Section 17
(D) (5) is satisfied, no appeal can be entertained. More so, the
constitutional validity of the said provision has already been upheld
by the learned Single Bench of this Court in Hindustan Petroleum
Corporation Ltd. Vs. Assistant Commissioner, Commercial Taxes,
Ernakulam and others (2009(4) KHC 819), which has been upheld
by the Division Bench. It is also pointed out that Ext.P1 issued by
the first respondent is in accordance with law and is not assailable
under any circumstance. As such, this Court does not find any
merit to interfere with the proceedings, since Ext.P1 issued by the
first respondent is in accordance with law.
4. However, it will open for the petitioner, if he so choses,
to satisfy the requirements under the statutory provisions so as to
have the appeal entertained in accordance with law.
5. After hearing, the learned counsel for the petitioner
submitted that the petitioner might be given an opportunity to clear
W.P(C) No.37385 of 2009 -P 3
the tax liability by way of reasonable instalments. Taking note of
the facts and circumstances and also the extent of liability fixed
upon the petitioner, this Court permits the petitioner to clear the
entire liability under Exts.P1 and P2 by way of ‘four’ equal monthly
instalments; the first of which shall be effected on or before the 31st
of this month, to be followed similar instalments to be effected on
or before 25th of the succeeding months. It is also made clear that if
any default is committed by the petitioner in clearing the liability as
above, the respondents will be at liberty to proceed with further
steps for realisation of the entire amount in a lump sum.
The Writ Petition is disposed of accordingly.
Sd/-
P.R.RAMACHANDRA MENON
JUDGE
//True Copy//
P.A to Judge
ab