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Kerala High Court
Ms.Majeed Associates vs Commercial Tax Officer on 17 December, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 36223 of 2010()


1. MS.MAJEED ASSOCIATES,
                      ...  Petitioner

                        Vs



1. COMMERCIAL TAX OFFICER,
                       ...       Respondent

2. MANAGER,

3. KERALA VAT APPELLATE TRIBUNAL,

                For Petitioner  :SRI.P.RAGHUNATH

                For Respondent  : No Appearance

The Hon'ble MR. Justice C.K.ABDUL REHIM

 Dated :17/12/2010

 O R D E R
                      C.K.ABDUL REHIM, J
                 ---------------------------------------
                  W.P(C) No.36223 of 2010-C
                ----------------------------------------
         Dated this the 17th day of December, 2010.

                         J U D G M E N T

Aggrieved by Ext.P1 order imposing penalty under

Section 67(1) of the Kerala Value Added Tax Act (KVAT

Act), the petitioner had preferred second appeal before the

3rd respondent Tribunal, as evidenced from Ext.P3. Ext.P4

is the stay petition filed along with the appeal. Grievance of

the petitioner is that without considering pendency of the

appeal, coercive steps of recovery has now been initiated as

per Ext.P5 notice.

2. It is stated that the issue pertains to rate of tax

applicable to the products ‘Ujala Supreme’ and ‘Ujala Stiff

and Shine’ dealt with by the petitioner. The question

regarding the rate of tax applicable to the product, is

pending final decision before this Court as well as before

the Hon’ble Supreme Court in different matters. It is

further pointed out that this Court had granted stay in many

identical cases, wherever appeals are pending against the

W.P(C) No.36223 of 2010-C 2

assessments, subject to condition of payment of 1/3rd of the

amount in dispute. Since the impugned order is one

imposing penalty, which is issued on the basis of an

interpretation regarding the rate of tax applicable issued

when the matter has not been finally settled. Hence it is

totally unsustainable, is the contention raised. Learned

counsel for the petitioner relies on a decision of the Hon’ble

Supreme Court in E.I.D Parry (I) Ltd. V. Assist.

Commissioner of Commercial Taxes and another

[(2000) 117 STC 457], in support of the above contention.

3. Having considered the fact that in identical

matters this Court had already issued directions to the

appellate authority to consider the appeal itself, I am of the

view that the matter can be disposed of directing the

appellate authority to consider and pass appropriate orders

on the appeal and till then to stay the recovery of the

amounts covered under Ext.P1.

4. Accordingly, the writ petition is disposed of

directing the 3rd respondent Tribunal to consider and pass

W.P(C) No.36223 of 2010-C 3

orders on Ext.P3 appeal, after affording an opportunity of

hearing to the petitioner, as early as possible, at any rate

within a period of three months from the date of receipt of a

copy of this judgment.

5. Till such time orders are passed by the Tribunal

as directed above, recovery of the amount of penalty

covered under Ext.P1 shall be kept in abeyance.

Sd/-

C.K.ABDUL REHIM
JUDGE

//True Copy//

P.A to Judge
ab

W.P(C) No.36223 of 2010-C 4


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