IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 13TH SEPTEMBER 2010 / 22ND BHADRA 1932 WP(C).No. 28214 of 2010(B) -------------------------- PETITIONER: --------------- AGS INFOTECH PVT.LTD., UNIT 19 & 20, BUILDING NO.2(A3), SECTOR I, MILLENNIUM BUSINESS PARK, MAHAPE, NAVI MUMBAI, MAHARASHTRA BRANCH AT DOOR NO.37/467, G.F.SUBHIVIHAR, TEMPLE ROAD, KOCHI-682 020, REP.BY ITS MANAGER, MOHANADAS.J. BY ADV. SRI.S.ANIL KUMAR (TRIVANDRUM) SRI.K.S.HARIHARAN NAIR RESPONDENT(S): --------------- 1. COMMISSIONER, COMMERCIAL TAXES, KERALA, THIRUVANANTHAPURAM-695 033. 2. HINDUSTAN PETROLEUM CO.LTD.,8, SHOORJI VALLABHADAS MARG, P.N.NO.155, MUMBAI-400 001, REPRESENTED BY ITS DEPUTY GENERAL MANAGER. GOVT. PLEADER SRI.C.K.GOVINDAN FOR R1 ADV.SRI.E.K.NANDAKUMAR, S.C. FOR R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J. -------------------------------------- W.P.(C).No.28214 of 2010 -------------------------------------- Dated this the 13th day of September, 2010 J U D G M E N T ---------------------- Petitioner had effected supply of various Electronic Industrial Inputs to the 2nd respondent, on the basis of Ext.P1 order placed by them. The goods were supplied from the branch office of the petitioner at Pondichery on the strength of Ext.P2 invoice. According to the petitioner, the transaction is purely an interstate sale, coming within the purview of provisions contained in Central Sales Tax Act. Grievance of the petitioner is that the 2nd respondent is withholding amounts due for payment to the petitioner on a mistaken impression that they are liable to deduct tax due on the transaction, in view of Section 10 of the Kerala Value Added Tax Act, 2003. Under such circumstances, the petitioner filed Ext.P5 application before the 1st respondent, under Section 94 of the KVAT Act, seeking clarification to the W.P.(C).28214/10-B -2- effect that the transaction is not a works contract involving any tax liability under the KVAT Act. Eventhough Ext.P5 was submitted as early as in March 2010, the 1st respondent has not so far considered the same and no order is issued till date. The non-disposal of Ext.P5 as well as the continued retention of amounts due from the 2nd respondent, is causing severe prejudice to the petitioner, is the contention. 2. Heard learned Government Pleader appearing for the 1st respondent. It is pointed out that going by Ext.P1 it is evident that the transaction in question is a works contract, for which tax is leviable. 3. However, I am of the opinion that it is for the 1st respondent to consider the issue based on materials available and to take a decision thereof. Hence the writ petition can be disposed of directing the 1st respondent to expedite the matter. 4. In the result, the writ petition is disposed of directing the 1st respondent to consider and pass orders on W.P.(C).28214/10-B -3- Ext.P5 application filed under Section 94 of the KVAT Act, after affording an opportunity of hearing to the petitioner, as early as possible, at any rate within a period of six weeks from the date of receipt of a copy of this judgment. 5. It is made clear that if the 2nd respondent has not already remitted the amount of tax deducted from the petitioner's bill, to the authorities of the Commercial Tax Department, the same may be withheld till a decision is taken by the 1st respondent as directed above. C.K.ABDUL REHIM, JUDGE. okb