IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 23RD MARCH 2010 / 2ND CHAITHRA 1932 WP(C).No. 9696 of 2010(J) ------------------------- PETITIONER: --------------- BHARATH PETROLEUM CORPORATION LTD., ERNAKULAM TERRITORY (RETAIL) OFFICE, IRUMPANAM, KOCHI-682 309, REPRESENTED BY ITS SENIOR FINANCE MANAGER, SRI.K.VENKATESAN. BY ADV. SRI.V.V.ASOKAN SRI.MAHESH V.MENON SMT.RUKHIYABI MOHD KUNHI RESPONDENTS: --------------- 1. DEPUTY COMMISSIONER (INTELLIGENCE), ERNAKULAM. 2. ASSISTANT COMMISSIONER, SPECIAL CIRCLE-II, ERNAKULAM. 3. INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAXES, ERNAKULAM, KOCHI-30. 4. SALES TAX APPELLATE TRIBUNAL, ERNAKULAM. 5. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. 6. INDIAN OIL CORPORATION LTD., PANAMPILLY AVENUE, PANAMPILLY NAGAR, ERNAKULAM. 7. HINDUSTAN PETROLEUM CORPORATION LTD., ERNAKULAM. BY SPL. GOVERNMENT PLEADER ADV. MR. VINOD CHANDRA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C) No. 9696 OF 2010 ......................................................................... Dated this the 23rd March , 2010 J U D G M E N T The petitioner is aggrieved of Ext. P9 'defect' noted by the 4th respondent 'Tribunal ' holding that the petitioner has not satisfied the statutory requirement by effecting the necessary deposit as contemplated under the relevant provisions of the KGST and CST Acts so as to have the appeal entertained on merits. The petitioner is also aggrieved of Ext.P10 'Garnishee proceedings' pursued in the meanwhile, besides challenging sustainability of the assessment orders on many a ground. 2. The learned Counsel appearing for the petitioner, referring to the sequence of events, submits that the assessment made under Section 17D of the KGST Act was challenged earlier, by approaching this Court in a Writ Petition, where interference was declined, which made the petitioner to approach the Division Bench of this Court by filing a Writ Appeal. After considering the facts and circumstances, the assessment W.P.(C) No. 9696 OF 2010 2 made by the 'Fast Track Team' was set aside on the ground that it was finalised without proper enquiry or giving adequate opportunity to petitioner, but the other contentions were repelled, which made the petitioner to approach the Apex Court by filing SLP (C)No.5651 of 2010, which was admitted on 08.03.2010. In the meanwhile based on the verdict passed in the Writ Appeal, explaining the course and procedure to be pursued for assessment under Section 17D of the Act, the matter was further proceeded with and after hearing the petitioner, the proceedings were finalised as per the orders dated 20.01.2010 and 22.01.2010. The case of the petitioner is that the matter has not been properly dealt with by the assessing authority, which made the petitioner to approach the 4th respondent Tribunal by filing statutory appeals against Exts.P1 to P4 assessment orders under the KGST and CST Acts as borne by Exts. P5, P6, P7 and P8, along with interlocutory applications for stay, however without remitting the tax. It was in the said circumstances that Ext. P9 'defect' was noted and communicated by 4th respondent, pointing out that the statutory requirement W.P.(C) No. 9696 OF 2010 3 has not been complied with, which in turn forms the subject matter of challenge in this Writ Petition. 3. Heard the learned Spl. Government Pleader (Taxes) as well. 4. The learned Counsel for the petitioner vehemently argued that the course and procedure pursued by the assessing authority is not correct or proper and that the 4th respondent ought to have entertained the appeal on merits without insisting for the statutory deposit under sub Section (5) of Section 17D of the KGST Act, for that matter, the Constitutional validity of the above provision is also put to challenge. 5. The primary question to be considered is whether Ext. P9 issued by the 4th respondent is correct of proper. True, the petitioner has already approached the appellate Tribunal by filing statutory appeals along with petitions for stay, well within time. But the crucial issue is whether the petitioner has complied with the 'statutory requirement' to have them entertained on merits. 6. Constitutional validity of sub-section (5) of Section 17D casting a liability upon the assessee/appellant to have deposited W.P.(C) No. 9696 OF 2010 4 the entire tax, for entertaining the appeal on merits was subjected to challenge before this Court earlier, which has been answered in favour of the Revenue, as per the ruling reported in 2009(4) KHC 819 [Hindustan Petroleum Corportion Ltd. vs. Asst. Commissioner, Commercial Taxes, Ernakulam]. This being the position, the issue raised against the validity of sub section (5) of Section 17D is no more open to challenge. As it stands to, the 'defect' pointed out from the part of the 4th respondent is very much correct and sustainable. 7. The learned Counsel also placed reliance on the observation made by the Division Bench in paragraph No.9 of the verdict passed in the decision cited supra, that Writ Petition is maintainable under Article 226 of the Constitution notwithstanding non-remittance of the admitted tax in some circumstances, if arbitrary orders are issued, and if the assessee/appellant does not have the resource to deposit the assessed tax and file appeal before the Tribunal. Placing reliance on the said observation, the learned Counsel submits that irreparable loss, injuries and hardships are being caused to W.P.(C) No. 9696 OF 2010 5 the petitioner by virtue of the stipulation contained in the statute and that the matter is liable to be entertained under Article 226 of the Constitution. Though the learned Counsel for the petitioner was heard at length, this Court does not find it as a fit case to exercise the discretionary jurisdiction under Article 226 of the Constitution, even going by the observation made by the Division Bench, for the primary reason that the assessment made by the assessing authority has not been shown as arbitrary in any manner and that the petitioner/BPCL does not have resource to effect the deposit. Since there is no enabling provision under the statute to dispense with the deposit to be made under Sub-Section (5) of Section 17D of the K.G.S.T. Act for having the appeals entertained on merits, the defect noted by the 4th respondent vide Ext. P9 is perfectly within the four walls of the law and no interference is warranted under any circumstances. 8. The Writ Petition is dismissed accordingly. However, this will not bar the way, if the petitioner cures the defect pointed out in Ext.P9 by effecting the statutory W.P.(C) No. 9696 OF 2010 6 deposit within ten days, if so advised, so as to have the appeal entertained on merts P.R. RAMACHANDRA MENON, JUDGE. lk