Sajeev. A. vs The Commrcial Tax Officer- on 15 December, 2006

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 32954 of 2006(W)


1. SAJEEV. A., PROPRIETOR,
                      ...  Petitioner

                        Vs



1. THE COMMRCIAL TAX OFFICER-1,
                       ...       Respondent

2. THE DEPUTY COMMISSIONER (APPEALS),

                For Petitioner  :SRI.T.M.SREEDHARAN

                For Respondent  : No Appearance

The Hon'ble MR. Justice P.R.RAMAN

 Dated :15/12/2006

 O R D E R
                              P.R.RAMAN, J.

                       ```````````````````````````

                     W.P.(C) NO. 32954 OF 2006

                       ```````````````````````````

            Dated this the 15th day of December, 2006


                             J U D G M E N T

The challenge made in this writ petition is against Exhibit P7

proceedings of the Deputy Commissioner (Appeals), Commercial

Taxes, Ernakulam disposing of an interim application filed along

with the appeal seeking stay of the order impugned in the appeal.

The order reads thus:

“For the reasons stated above, the petition filed by the

appellant is dismissed as the appellant has not remitted the tax

assessed to entertain the appeal as per section 55, of the KVAT

Act and the rate of tax adopted by the assessing authority is on

the basis of the Circular issued by the Commissioner of

Commercial Taxes, as per section 94 of the KVAT Act.

As per second proviso to Section 55, no appeal shall be

entertained under this sub-section unless it is accompanied by

satisfactory proof of the payment of

a) the entire tax assessed, where the appeal is against an

assessment completed under sub-section (3) of section 22.”

As per Section 22(7) of the Kerala Value Added Tax, it opens

with a non obstante clause. For the purpose of easy reference,

the said provision is extracted hereunder.

“Notwithstanding anything contained in any other provision

of this act, no appeal shall lie against the assessment completed

under Sub Section (3) of this section unless the dealer has paid

WPC 32954/2006

: 2 :

the entire tax assessed.”

2. From the above provision, it can be seen that Sub

Section 7 overrides Section 55 and therefore the appellate

authority cannot grant a stay if the assessment is made under

Section 22 because of the overriding effect of Section 22(7). The

appellate authority in such circumstances having dismissed the

interim application for stay, I do not find any justifiable ground to

interfere with that order.

The writ petition is accordingly dismissed.

Issue emergent copy.

P.R.RAMAN, JUDGE

Rp