IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 173 of 2011()
1. THE INDIA CEMENTS LIMITED
... Petitioner
Vs
1. THE ASSISTANT COMMISSIONER
... Respondent
For Petitioner :SRI.K.SRIKUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice B.P.RAY
Dated :08/02/2011
O R D E R
C.N.RAMACHANDRAN NAIR & BHABANI PRASAD RAY, JJ.
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W.A. Nos.173 & 177 of 2011
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Dated this the 8th day of February, 2011.
J U D G M E N T
Ramachandran Nair, J.
These Writ Appeals are filed against the judgment of the
learned Single Judge declining to entertain challenge against
assessment and the appellant to pursue statutory remedy of appeal.
In the normal course, we would not have allowed the appellant to
contest the sales tax assessment on merit in writ proceedings.
However, learned counsel for the appellant referred to the
assessment challenged in the Writ Petition before this Court,
wherein the Assessing Officer has just followed a Division Bench
judgment of this Court in the case of IFB Industries Ltd. v. State of
Kerala (judgment in S.T.Rev.No.396/2008) and disallowed
assessee’s claim for discount, which is a huge amount given
through credit notes. Learned Special Government Pleader
appearing for the respondents submitted that the same preposition
as laid down in the above case was declared by this Court vide
judgment in the case of Godrej & Boyce Manufacturing Company v.
W.A.Nos.173 & 177 of 2011
2
State of Kerala reported in 2010(1) KLT 978. We find force in the
contention of the appellant that when the sole question to be
decided in the Appeals is covered by the Division Bench judgments
of this Court, which are binding on the statutory authorities, no
purpose will be served by relegating the matter to the appellate
authority. The challenge, therefore, is against the Division Bench
judgments of this Court, and the learned counsel for the appellant
submitted that the decision of this Court in IFB Industries case has
already been challenged in an SLP filed before the Supreme Court
and the SLP is admitted, and an intervening application also has
been filed by the appellant in the SLP. In the circumstances, we feel
the appellant’s remedy is only to approach the Supreme Court
because we do not propose to consider the correctness of our above
referred decisions, which are confirmed in several later decisions.
2. Learned counsel for the appellant has also relied on
several earlier judgments of the Supreme Court, particularly in
Deputy Commissioner of Sales Tax (Law) Board of Revenue (Taxes)
v. M/s. Advani Coorlikon (P) Ltd., reported in 1980 KHC 71, and
Deputy Commissioner of Sales Tax (Law), Board of Revenue
(Taxes), Ernakulam v. Motor Industries Co., reported in 53 STC 48.
W.A.Nos.173 & 177 of 2011
3
Learned Special Government Pleader submitted that these
judgments pertain to the provisions of the KGST Act and Rules prior
to the amendment. We feel the appellant’s remedy is to challenge
the decision of this Court relied on by the Assessing Officer in
disallowing claim of deduction of discount before the Supreme
Court. Consequently, following our above two decisions, we uphold
the assessment disallowing discount on credit notes. These Writ
Appeals are, accordingly, dismissed on merit leaving it open to the
appellant to approach the Supreme Court, if they have any grievance
against this judgment.
Since an SLP is already pending, there will be a direction to the
respondents to withhold recovery proceedings for a period of six
weeks from now. However, if stay is not obtained within the said
period, respondents are free to proceed with recovery after six
weeks.
(C.N.RAMACHANDRAN NAIR, JUDGE)
(BHABANI PRASAD RAY, JUDGE)
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