IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 26TH MARCH 2008 / 6TH CHAITHRA 1930 WP(C).No. 9491 of 2008(E) -------------------------------------- PETITIONER: ------------------- CENTURION BANK OF PUNJAB LTD., REPRESENTED BY BINOD.P., ASSISTANT GENERAL MANAGER (LAW), CENTURION BANK OF PUNJAB LTD., INDIAN EXPRESS BUILDING, KALOOR, KOCHI - 17. BY ADV. SRI.P.B.SURESH KUMAR SRI.LEO GEORGE RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPUTY COMMISSIONER OF APPEALS, COMMERCIAL TAXES, THIRUVANANTHAPURAM. 3. THE ASSISTANT COMMISSIONER (AUDIT ASSESSMENT), OFFICE OF THE DEPUTY COMMISSIONER, (AA), COMMERCIAL TAXES, THIRUVANANTHAPURAM. 4. INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAXES, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/03/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss V.GIRI,J. ------------------------- W.P ( C) No.9491 of 2008 -------------------------- Dated this the 26th March, 2008 J U D G M E N T I heard learned counsel for the petitioner and learned Government Pleader. With the consent of parties, writ petition has been taken up and disposed of. 2. Petitioner is a Scheduled Bank which provides loans to eligible persons to purchase motor vehicles. In the event of default by the loanees, the vehicles are repossessed in terms of the agreement entered into by the petitioner with loanees. There is a dispute as to whether the petitioner is a dealer or owner of the vehicle while repossessing the vehicle. Thereafter, vehicle is sold to third parties. It is the petitioner’s contention that firstly it is not a dealer as regards the used vehicle. Secondly assuming that it sells the used vehicles, it is taxable at 4% and not at the rate of 12.5%. There is also a contention with reference to Exhibit P3, on the premise that in computing the turn over under Rule 10(i) of the KVAT Rules, only such portion of the turn over constituted by the sale proceeds of the vehicle W.P ( C) No.9491 of 2008 2 will be taken, provided the sale price is in excess of purchase price of the vehicle. 3. It seems that on receipt of the pre-assessment notice, a representative of the assessee sought for time to file objection. Reading of the order of assessment shows that, apparently, the plea for further time beyond a period of 10 days was not granted. Therefore, assessment was completed. Exhibit P8 and P9 appeals were preferred before the appellate authority. Exhibits P10 and P11 applications for stay were also preferred for the assessment years 2005-2006 and 2006-2007. I have gone through the appeal memorandum as also the petitions for stay. 4. The appellate authority proceeded to pass orders on the application for stay as per Exhibit P12. Steps for collection of disputed tax is stayed provided 50% thereof is deposited within a period of two weeks. Exhibit P12 is under challenge in this writ petition. 5. Learned counsel for the petitioner submits that Exhibit P12 order reveals non application of mind and also the mechanical manner in which the order is passed. All orders on application for stay need not be identical requiring the assessee W.P ( C) No.9491 of 2008 3 to pay 50% of the disputed tax. 6. Learned Government Pleader on the other hand submits that the order does not determine the rights of the parties. Therefore, no interference by this Court is warranted. 7. Normally an interference with an order of stay pending disposal of the appeal is not warranted. But I am constrained to take note of the following facts; firstly the petitioner is a Bank. Secondly, time was sought for by the petitioner for filing objection to the pre-assessment notice and the same was not granted. Thirdly, valid contentions have been taken by the assessee in the appeal and also urged in the application for stay. Fourthly the appellate authority does not seem to have appreciated these contentions vide Exhibit P13 order. 8. For all these, I am of the view that the appellate authority should have bestowed more attention while deciding the application for stay. 9. The course of action now available would normally be to interfere with Exhibit P12 and direct the application for stay to be reconsidered. Learned counsel for the petitioner submits W.P ( C) No.9491 of 2008 4 that petitioner would pay a portion of the demanded amount as a condition for stay of enforcement of recovery notices. 10. I heard the Government Pleader on these aspects also. In the result, the writ petition is disposed of directing the 2nd respondent to consider Exhibit P8 and P9 appeals and pass orders, within a period of three months from the date of receipt of a copy of this judgment. Further enforcement of Exhibits P6 and P7 shall be kept in abeyance till the disposal of Exhibits P8 and P9 appeals provided the petitioner pays an amount of Rs.40 lakhs within a period of one month from today. If such amount is paid, it shall be treated as sufficient compliance of the directions issued in Exhibit P12 order. The writ petition is disposed of as above. (V.GIRI, JUDGE) ma W.P ( C) No.9491 of 2008 5 K.THANKAPPAN,J CRL.A. NO.92 OF 1999 ORDER W.P ( C) No.9491 of 2008 6 25th May, 2007 Common issues are raised for consideration in all these writ petitions. Reference is made to the facts in Writ Petition No.4562/2008 for the sake of convenience.