IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 32734 of 2010(N)
1. S.NAJEEM MUSALIAR,NAJEEM CASHEW
... Petitioner
Vs
1. ASST.COMMISSIONER III,
... Respondent
2. THE DEPUTY COMMISSIONER OF TAX,KOLLAM.
3. THE APPELLATE TRIBUNAL,
4. THE STATE OF KERALA,
For Petitioner :SRI.E.D.GEORGE
For Respondent : No Appearance
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :04/11/2010
O R D E R
C.K.ABDUL REHIM, J
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W.P(C) No.32734 of 2010-N
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Dated this the 4th day of November, 2010.
J U D G M E N T
Aggrieved by Ext.P4 assessment completed for the
month of April 2009 under Section 22(3) of the Kerala Value
Added Tax Act (KVAT Act), the petitioner had approached
the first appellate authority. While disposing the appeal
certain relief was granted to the petitioner and the matter
was remitted back to the first respondent assessing
authority to pass modified orders. Ext.P5 is the order of the
first appellate authority. Ext.P6 is the modified assessment
issued by the first respondent. Against Ext.P5 the petitioner
had filed second appeal before the State Appellate Tribunal,
as evidenced from Ext.P7. It is submitted that the second
appeal is pending consideration and disposal before the
Tribunal.
2. Contention of the petitioner is that the claim for
exemption based on high Sea Sale for an amount of
Rs.1,54,41,548/- and Export Sale amounting to
W.P(C) No.32734 of 2010-N 2
Rs.1,51,87,500/- supported by all necessary documents,
were not allowed. According to the petitioner, the original
documents relating to above said transactions which were
produced before the assessing authority, were not sent for
consideration of the appellate authority and inspite of
production of copies of such documents the first appellate
authority has not considered such deductions for want of
the originals. Apprehension of the petitioner is that such
documents will not be produced by the 1st respondent
before the Appellate Tribunal also. Under such
circumstances the petitioner is seeking direction to the 3rd
respondent to consider such documents and to pass
appropriate orders.
3. It is evident that the statutory appeal is now
pending disposal before the State Appellate Tribunal.
Correctness of the assessment is in dispute before that
authority and the petitioner has to pursue remedy by
producing all documents in support of his claim. If the
petitioner had produced such documents before the
W.P(C) No.32734 of 2010-N 3
assessing authority and if the authority is not producing
such records before the Tribunal, it is left open to the
petitioner to seek appropriate relief from the Tribunal by
calling for such records from the custody of the assessing
authority. Instead of resorting such remedy, the writ
petition is filed seeking to quash assessment order, could
not be entertained.
Under the above circumstances,the writ petition is
dismissed with liberty to the petitioner to take appropriate
steps before the Appellate Tribunal for production of
records which are in the custody of the first respondent.
Sd/-
C.K.ABDUL REHIM
JUDGE
//True Copy//
P.A to Judge
ab
W.P(C) No.32734 of 2010-N 4