IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 243 of 2008(D)
1. VIANI PAPERS, COCHIN-18,
... Petitioner
Vs
1. FAST TRACK TEAM, COMMERCIAL TAXES,
... Respondent
2. THE SALES TAX APPELLATE TRIBUNAL,
For Petitioner :SRI.S.VIJAYAN NAYAR
For Respondent : No Appearance
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :31/01/2008
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) No. 243 OF 2008 D
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Dated this the 31st January, 2008
J U D G M E N T
Petitioner is an assessee under the Kerala General Sales Tax
Act. Exts. P1(a), P1(b) and P1(c) are the returns of the petitioner for
the assessment years 2002-03, 2003-04 and 2004-05. With effect
from 1.4.2007, Fast Track method of Assessment was introduced in
the Kerala General Sales Tax Act by virtue of Section 17D
incorporated therein. In terms of the said provision, assessment
for the aforesaid years was completed under Section 17D of the Act
and Exts. P2(a), P2(b) and P2(c) are the copies of the assessment
orders. Petitioner filed appeals against the aforesaid assessment
orders and Exts. P3(a), P3(b) and P3(c) are the appeals that are filed
before the 2nd respondent. It is the admitted case of the petitioner
that the petitioner has not paid the disputed tax levied as per the
assessment orders. The Tribunal has not registered the appeals and
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it is in this background the writ petition has been filed praying for
quashing the assessment orders or in the alternative to direct the
2nd respondent to register the appeals.
2. According to the petitioner, the requirement of payment
of the entire tax amount as provided for in Section 17D(5) is only in
relation to ex parte assessment orders. According to the petitioner,
since the assessment orders in question are not ex parte orders, the
payment of tax amount is not a requirement of law. For this
purpose, petitioner is referring to paragraph 143 clause (iii) of the
Budget Speech, 2007 where it is stated that any appeal against the
ex parte orders of assessment under the Fast Track Method, will be
maintainable only on payment of full tax assessed in such
assessment.
3. Having heard the counsel for the petitioner and also the
learned Govt. Pleader, I should confess my inability to accept the
contentions raised by the petitioner. Section 17D(5) provides as
follows:
“Notwithstanding anything contained in any other
provisions of this Act, appeals against the assessment
orders issued under fast track method shall lie within
forty five days to the Sales Tax Appellate Tribunal and
no such appeal shall lie unless the dealer has paid the
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entire tax amount.”
From a plain reading of this section it is obvious that an appeal, be
it against an ex parte order of assessment or not, shall be filed
within forty five days to the 2nd respondent Tribunal and no such
appeal shall lie unless the dealer has paid the entire tax amount.
The words of the statute do not admit of any ambiguity and it does
not make any distinction in so far as the ex party orders of
assessment are concerned. Therefore, I am of the firm view that
any appeal arising out of an assessment under Section 17D can be
maintained only on payment of the entire tax amount.
4. It is true that the petitioner has placed reliance on the
Budget Speech, 2007. A reading of the extracted portion, does not
lead to the inference that the requirement of Section 17D(5) is only
in so far as ex parte orders of assessment are concerned. Even
otherwise, in view of the clear statutory provision, I do not think that
the Court should be guided by the Budget Speech. The provisions
of the Circular No. 17/07 dated 12.4.2007 also does not support
the case canvassed by the petitioner.
5. In this case, petitioner themselves admit in paragraph 5 of
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the writ petition that they have not paid the disputed tax estimated
by the Fast Track Team. If that be so, the requirement of Section
17D(5) remains unsatisfied and the Tribunal is justified in declining
to entertain the appeal filed by the petitioner.
The writ petition is only to be dismissed and I do so.
ANTONY DOMINIC
JUDGE
jan/-