IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 27421 of 2010(C)
1. MS. MAJEED ASSOCIATES,
... Petitioner
Vs
1. COMMERCIAL TAX OFFICER,
... Respondent
2. DEPUTY COMMISSIONER (APPEALS),
3. KERALA VAT APPELLATE TRIBUNAL,
4. INSPG. ASST. COMMISSIONER,
For Petitioner :SRI.P.RAGHUNATH
For Respondent : No Appearance
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :03/09/2010
O R D E R
C.K.ABDUL REHIM, J.
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W.P.(C).No.27421 of 2010
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Dated this the 3rd day of September, 2010
J U D G M E N T
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With respect to the period from April 2008 to
August 2008, assessment was completed against the
petitioner as per Ext.P1 order. It was confirmed in appeal as
evidenced from Ext.P2. Against the appellate order, the
petitioner had filed further appeal before the 3rd respondent
Tribunal, as per Ext.P3. A stay petition as per Ext.P4 was
also filed along with the appeal. It is submitted that the
Tribunal has not yet considered either the appeal or the stay
application. Grievance of the petitioner is that recovery
steps are now being proceeded against for realising the
amount of tax in dispute, without considering pendency of
the second appeal. Hence the petitioner seeks direction to
keep in abeyance the recovery steps till the disposal of the
appeal.
2. It is submitted that the only dispute in the appeal
pertains to the rate of tax applicable for the products, “Ujala
Supreme” and “Ujala Stiff & Shine” dealt with by the
W.P.(C).27421/10 -2-
petitioner. It is further submitted that the question is pending
decision in various other appeals filed by the manufacturer as
well as dealers, awaiting decision on the issue from the Hon’ble
Supreme Court. It is pointed out that this court had granted stay
in many other cases, against recovery of the tax amounts,
pending disposal of such appeals on condition of payment of 1/3rd
of the amounts in dispute. Hence I am of the opinion that a
similar relief can be granted in this case also.
3. In the result the 3rd respondent Tribunal is directed to
consider and dispose of Ext.P3 appeal, after affording an
opportunity of hearing to the petitioner, as early as possible.
Realisation of amounts covered under Ext.P1 assessment which
stands confirmed in Ext.P2 appellate order shall be kept in
abeyance, on condition of the petitioner remitting 1/3rd of the tax
amount in dispute and also on furnishing security for the balance
amount, within three weeks from today.
4. Ext.P5 is an order of penalty issued under Section 67
(2) of the KVAT Act. An appeal filed by the petitioner against
Ext.P5 before the 2nd respondent was stated to be heard on
18.5.2010, and orders thereon is awaited. But, grievance of the
petitioner is that now recovery steps are being pursued without
considering pendency of the appeal. It is further submitted that
W.P.(C).27421/10 -3-
the appeal was heard in full and that the petitioner is not
insisting for any further hearing. Therefore a direction is sought
for to keep in abeyance recovery steps till orders are passed on
the appeal.
5. Having considered facts and circumstances I am of
the opinion that the 2nd respondent can be directed to pass
orders on the appeal filed against Ext.P5, and till then the
recovery can be stayed.
Under the above circumstances the 2nd respondent is
directed to pass orders on Ext.P6 appeal, at the earliest, at any
rate within a period of one month from the date of receipt of a
copy of this judgment. Respondents are directed to keep in
abeyance realisation of amounts covered under Ext.P5 till such
time.
C.K.ABDUL REHIM, JUDGE.
okb