IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 10TH OCTOBER 2011 / 18TH ASWINA 1933 WP(C).No. 18445 of 2011(E) -------------------------- PETITIONER: ------------------ 1. G.SOMAN, PROPRIETOR, HOTEL AKASH AND ROHINI SHOPPING COMPLEX, KOTTARAKKARA. 2. HOTEL ROHINI BAR, PUTHUR, KOTTARAKKARA REPRESENTED BY G.SOMAN, MANAGING PARTNER. BY ADV. SRI.N.DHARMADAN, SENIOR ADVOCATE SMT.D.P.RENU RESPONDENTS: ---------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001 2. KERALA STATE SALES TAX (VAT) APPELLATE TRIBUNAL, REPRESENTED BY THE SECRETARY, OFFICE OF THE KERALA STATE SALES TAX (VAT) APPELLATE TRIBUNAL, THIRUVANANTHAPURA-695001 3. THE COMMERCIAL TAX OFFICER, OFFICE OF THE COMMERCIAL TAX OFFICER, KOTTARAKKARA-691506 4. THE FAST TRACK ADALATH TEAM NO.III, KOLLAM CAMP, REPRESENTED BY INSPECTING ASSISTANT COMMISSIONER, KOTTARAKKARA-691506 BY SENIOR GOVT. PLEADER, SRI.C.K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MM WP(C).No. 18445 of 2011(E) APPENDIX PETITIONER'S EXHIBITS P1 COPY OF ASSESSMENT ORDER DT.30-12-10 BY THE 4th RESPONDENT P2 COPY OF ASSESSMENT ORDER DT.24-9-2010 BY THE 4th RESPONDENT P3 COPY OF APPEAL MEMO FOR THE YEAR 2004-05 OF THE HOTEL AKASH P4 COPY OF APPEAL MEMO FOR THE YEAR 2004-05 OF THE HOTEL ROHINI P5 COPY OF NOTICE DT.27-5-2011 ISSUED BY 2nd RESPONDENT P6 COPY OF NOTICE DT.11-4-2011 ISSUED BY 2nd RESPONDENT P7 COPY OF APPLICATION DT.24-2-2011 FILED BY THE PETITIONER P8 COPY OF APPLICATION DT.16-11-2010 FILED BY THE PETITIOER P9 COPY OF DEMAND NOTICE DT.NIL FOR THE YEAR 2004-05 P10 COPY OF DEMAND NOTICE DT. NIL FOR THE YEAR 2004-05 P11 COPY OF STAY PETITION DT. 08-07-2011 FILED BEFORE THE APPELLATE TRIBUNAL P12 COPY OF STAY PETITION DT. 8-7-2011 FILED BEFORE THE APPELLATE TRIBUNAL RESPONDENT'S EXHIBITS: NIL TRUE COPY P.A. TO JUDGE MM S.SIRI JAGAN, J. ================== W.P.(C).No. 18445 of 2011 ================== Dated this the 10th day of October, 2011 J U D G M E N T Against Exts.P1 and P2 orders of assessment under Section 17D of the Kerala General Sales Tax Act, the petitioners filed Exts.P3 and P4 appeals. The petitioners have filed this writ petition challenging recovery proceedings for recovery of the tax disputed in the appeals. The petitioners seek the following reliefs: “(a) issue a writ of certiorari or other writ or order or direction calling for the papers leading upto Ext.P10 and set aside the orders Ext.P1 and P2 and demand notices Ext.P9 and P10; (b) issue a writ of mandamus or other writ or direction directing the 2nd respondent to post the appeal Ext.P3 and P4 and dispose of the same at any early date and till such time all the coercive steps initiated by the Commercial Tax Officer, Kottarakkara are to be stayed in the interest of justice; (c) issue a writ of mandamus or other writ or direction directing the 4th respondent not to enforce Ext.P9 and P10 till the disposal of the appeals Exts.P2 and P3.” 2. This is opposed by the learned Government Pleader, who points out that for maintaining the appeals themselves, the petitioners are bound to deposit the entire tax assessed as a statutory condition. 3. I have considered the rival contentions in detail. I am of opinion that the petitioners cannot resort to proceedings under Article 226 of the Constitution of India to overcome a statutory prescription. The statute stipulates that for maintaining an appeal before the Tribunal against an order of assessment under Section 17D, the w.p.c.18445/11 2 assessee has to deposit the tax assessed. If I direct the Tribunal to consider the appeals without depositing the tax assessed notwithstanding the statutory prescription, that would be a fraud on the statute itself. This Court has already upheld the constitutional validity of Section 17D as well. In the above circumstances, I am not inclined to entertain this writ petition. Accordingly, this writ petition is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge