IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 28TH SEPTEMBER 2010 / 6TH ASWINA 1932 WP(C).No. 29749 of 2010 (P) -------------------------- PETITIONER: -------------------- N.SANDHYA, PROPRIETRIX, SANDHYA ENTERPRISES, NANGIARKULANGARA, ALAPPUZHA. BY ADVS. SRI.P.RAGHUNATH SRI.PREMJIT NAGENDRAN RESPONDENTS: ------------------------ 1. COMMERCIAL TAX OFFICER, HARIPAD – 590614. 2. DEPUTY COMMISSIONER [APPEALS], KOLLAM – 590019. 3. INSPECTING ASST.COMMISSIONER, COM. TAXES, CHENGANNUR – 689121. BY GOVERNMENT PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK C.K.ABDUL REHIM, J --------------------------- W.P(C) No.29749 of 2010-P ---------------------------- Dated this the 28th day of September, 2010. J U D G M E N T The petitioner is a dealer of the product “Ujala Supreme” and “Ujala Stiff & Shine”. Against the assessment completed for the year 2005-06, Ext.P2 statutory appeal filed by the petitioner before the second respondent, is pending. Ext.P3 stay petition filed along with the appeal is also stated to be pending disposal before the appellate authority. Without considering pendency of the appeal and the stay petition, recovery steps are being pursued on issuing Ext.P4 notice. Hence the writ petition is filed seeking to restrain the recovery steps till the disposal of the appeal. 2. The main issue in the appeal pertains to the rate of tax applicable on the above said product. It is stated that the issue is now remaining unsettled, pending in consideration before this Court as well as before the Hon'ble Supreme Court. In a second appeal filed by the manufacturer it was upheld by the State Tribunal that the rate of tax applicable is 4%, which is now under challenge in a revision filed before this Court by the State. At the same time W.P(C) No.29749 of 2010-P 2 another dealer had sought clarification under Section 94 of the Kerala Value Added Tax and the Commissioner of Commercial Taxes held that the rate of tax applicable is 12%. A revision filed against that finding was dismissed by this Court and the matter is now pending before the Hon'ble Supreme Court in a SLP filed by that dealer. 3. Being the position as stated above, in identical matters where appeals were pending, this Court directed the appellate authority to consider and dispose of the appeals and recovery was stayed till then on condition of payment of 1/3rd of the amount in dispute. I am of the opinion that a similar relief can be granted in this writ petition also. 4. Accordingly, the writ petition is disposed of directing the second respondent to consider and pass orders on Ext.P2 appeal, after affording an opportunity of hearing to the petitioner at the earliest possible, at any rate within a period of three moths from the date of receipt of a copy of this judgment. 5. Till such time orders are passed by the second respondent, recovery of the balance amount covered under Ext.P1 assessment shall be kept in abeyance on condition of the petitioner W.P(C) No.29749 of 2010-P 3 remitting 1/3rd of the amount in demand, less the amount of Rs.50,000/- stated to have been paid as per Ext.P5. The payment as directed above shall be made within three weeks from today. The petitioner shall also furnish security for the balance amount. 6. Petitioner will produce a copy of the judgment before the second respondent. S d/- C.K.ABDUL REHIM JUDGE //True Copy// P.A to Judge ab W.P(C) No.29749 of 2010-P 4