IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 7TH APRIL 2010 / 17TH CHAITHRA 1932 WP(C).No. 9534 of 2010(N) ------------------------- PETITIONER: --------------- M/S.KOCHI REFINERIES LTD.,AMBALAMUGAL, NOW AMALGAMATED WITH BHARATH PETROLEUM CORPORATION LTD.,REP.BY ITS SENIOR FINANCE MANAGER K.SUNDARESWARA IYER. BY ADV. SRI.V.V.ASOKAN SRI.K.S.SAJEEV KUMAR SMT.RUKHIYABI MOHD KUNHI RESPONDENTS: --------------- 1. ASSISTANT COMMISSIONR, SPECIAL CIRCLE-II COMMERCIAL TAXES, ERNAKULAM. 2. DEPUTY COMMISSIONR (APPEALS),DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM. 3. INSPECTING ASSISTANT COMMISSIONR (RECOVERY),DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM. 4. INDIAN OIL CORPORATION LTD., KERALA STATE OFFICE, PANAMPILLY NAGAR, ERNAKULAM. 5. HINDUSTHAN PETROLEUM CORPORATION LTD. ERNAKULAM. BY GOVERNMENT PLEADER ADV. MR. C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/04/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON, J. .............................................................................. W.P. ( C) No. 9534 OF 2010 ......................................................................... Dated this the 7th April, 2010 J U D G M E N T The petitioner, which is a Central Government Company is before this Court, challenging sustainability of the condition imposed vide Exts. P10 to 12 interim orders directing the petitioner to satisfy 40% of the disputed liability, so as to avail the benefit of the interim stay during the pendnecy of the statutory appeals in respect of the assessment under the KGST Act. 2. With regard to the grievances in respect of CST, the interlocutory applicaions preferred for stay, during the pendency of the appeals have been simply rejected as per Ext. P13, which is also under challenge. 3. Mr. Mayankutty Mather, the learned Counsel appearing for the petitioner explained the sequence of events and the irrationality of the impugned orders, as narrated in the Writ W.P. ( C) No. 9534 OF 2010 2 Petition. 4. Assessment in respect of 2001-02 and 2002-03 was completed under the KGST and CST Acts, as borne by Exts. P1 to P4; which in turn were subjected to challenge by filing Exts. P5 to P8, along with necessary interlocutory applications. It is stated that the respondents are proceeding with coercive steps under the Revenue Recovery Act, as borne by Exts.P9 to P9(c) and Exts. P9(d) to P9(f) Garnishee proceedings. 5. The grievance projected in respect of Exts.P10 to P13 interim orders, as aforesaid, is with regard to non-consideration of the vital points raised by the petitioner before the appellate authority, as to the course and procedure followed by the assessing authroity, without any regard to the specific case as to the 'rate of tax' applicable and as to various amounts already satisfied by the petitioner pursuant to 'Garnishee' proceedings and such other relevant aspects. 6. With regard to CST assessments, the learned Counsel submits that necessary 'C' forms could not be collected and produced before the assessing authoity on time, due to many a W.P. ( C) No. 9534 OF 2010 3 reason, including the delay in having the same supplied by the concerned parties due to non availability of 'C' forms in the concerned States. The learned Counsel further submits that all the requisite 'C' forms are now available with the petitioner and that the petitioner requires one more opportunity to have the same produced, on which event, the liability will be substantially scaled down. 7. The learned Government Pleader appearing for the respondents submits that the impugned orders have been passed with specific reference to the case projected before the appellate authority and as to the lapses on the part of the petitioner in not raising the same before the assessing authority. It is also stated that, opportunity was given by the assessing authority himself, so as to produce the requisite materials before the said authority and that the petitioner did not produce the requisite materials to substantiate the case. It is further contended that all the amounts paid pursuant to the 'garnishee proceedings' have been given credit to and only the balance amount is required to be satisfied as clearly stated in W.P. ( C) No. 9534 OF 2010 4 the statement. It is further submitted that the position and the sequence of events have been clearly discussed by the appellate authority, as borne by the impugned orders and hence that there is proper application of mind, which do not call for any interference. 8. Going by the materials on record, it is the case of the petitioner that, with regard to the assessment year 2001-02 under KGST Act, several weighty contenions have been put forth as stated in paragraph No.4 of the Writ Petition. Similar circumstances, with regard to the assessment year 2002-03 have been stated in paragraph '6' . Various instances of 'short credit' and 'excess payment' have been projected elsewhere. So also, the circumstacnes in relation to CST Act pertaining to both the assessment years have been highlighted much. All these aspects, including the rate of tax, according to the petitioner, were clearly brought to the notice of the appellate authority, which however have been given a 'go-bye'. 9. True, by virtue of complexity of factual position, the matter requires some time, to have the same considered and W.P. ( C) No. 9534 OF 2010 5 finalised. But, that is not a reason for the appellate authority to have resorted to 'short cut', referring to the lapses on the part of the petitioner with regard to the contentions raised before the assessing authority and also as to the other aspects as referred to in the impugned orders. Taking note of the state of affairs and considering the grounds of challenge, this Court finds that one more opportunity can be given to the petitioner, particularly when the petitioner is one of the major tax payers of the State. This Court finds that the matter ought to have been considered and dealt with by the appellate authoity in an elaborate manner, so as to have appreciated sustainability of the contentions taken by the petitioner and to have fixed the liability, while imposing the condition for availing the benefit of interim stay during the pendency of appeal. The extent of liability now fixed, making the petitioner to satisfy 40% of the disputed amount appears to be on the higher side. Accordingly, the same is scaled down to '20%' and the petitioner shall furnish sufficient security for the balance amount, before the assessing authority, so as to avail the benefit of the interim stay granted W.P. ( C) No. 9534 OF 2010 6 by the appellate authority. 10. Taking note of the fact that the time granted by the appellate authority to satisfy the condition stands already expired, the petitioner is granted a further period of two weeks to satisfy the condition as modified; upon which, the petitioner will continue to enjoy the benefit of the interim stay. The second respondent is directed to consider and finalise Ext.P5 to P8 appeals , after giving an opportunity of hearing to the petitioner, as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of the judgment. The Writ Petition is disposed of. P.R. RAMACHANDRA MENON, JUDGE. lk