IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR THE HONOURABLE MR. JUSTICE V.K.MOHANAN & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 8TH JULY 2009 / 17TH ASHADHA 1931 OP.No. 25668 of 2002(E) ---------------------------------- PETITIONER: ------------------- M/S.IDEAL TRADING COMPANY, HILL PRODUCE DEALERS, MAIN ROAD, KALPETTA, REPRESENTED BY M.C.ABDUL REHMAN, MANAGING PARTNER, S/O. N.P. ABDULLAKUTTY HAJI, AGED 34, RESIDING AT `GREENS', NEAR WATER HOUSE, KALPETTA. BY DR.K.B.MUHAMED KUTTY, SENIOR ADVOCATE ADV. MR.K.M.FIROZ. RESPONDENTS: ------------------------ 1. THE SALES TAX OFFICER, VYTHIRI AT KALPETTA. 2. THE STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. R1 & R2 BY GOVERNMENT PLEADER THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 08/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 25668/2002-E: ORDER ON C.M.P. NO. 43568/2002 IN O.P. NO. 25668/2002-E DISMISSED SD/- C.N.RAMACHANDRAN NAIR, JUDGE, SD/- V.K.MOHANAN, JUDGE, 08/07/2009. SD/- C.K.ABDUL REHIM, JUDGE. APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE NOTIFICATION NO. G.O.(P).35/2001/TD (SRO.NO.1071/2001 DTD. 03/12/2001. EXT.P.2: COPY OF THE ASSESSMENT ORDER FOR 1998-99 ISSUED BY THE R.1. TO THE PETITIONER DTD. 29/07/2002. EXT.P.3: COPY OF THE PETITION SENT BY THE PETITIONER TO THE SALES TAX COMMISSIONER, THIRUVANANTHAPURAM DTD. 01/01/2002. EXT.P.4: COPY OF THE PETITION SENT BY THE PETITIONER TO THE R.1. DTD. 07/01/2002. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. C.N. RAMACHANDRAN NAIR, J. -------------------------------------------- O.P. NO. 25668 OF 2002 -------------------------------------------- Dated this the 12th day of December, 2007 REFERENCE ORDER Petitioner is challenging Ext.P1 notification to the extent it prohibits refund of tax paid. Petitioner, who is a dealer in coffee and pepper, challenged the assessment demanding tax on coffee in appeal. The order of the appellate authority is not produced. The appellate authority remanded the matter for considering petitioner's claim for exemption based on notification, but with a finding that tax paid should not be refunded. The said order of the appellate authority is consistent with the notification. The Assessing Officer vide Ext.P2 order granted exemption but declined refund based on the notification, SRO 1071/01 dated 3.12.2001. Relying on the decision of a Division Bench of this Court in APAR LTD. V. ASST. COMMISSIONER AND ANOTHER, (2000) 8 K.T.R. 363 (Ker.), senior counsel contended that petitioner is entitled to refund after holding part of the notification challenged in the O.P. as illegal. Government Pleader on the other hand relied on the decision of another Division Bench of this court in ASST. 2 COMMISSIONER V. ASSOCIATED CEMENT COMPANIES LTD., (1997) 1 K.L.T. 802, whereunder the Division Bench has held that tax paid need not be refunded as stated in the notification. It is also brought to my notice that payment is made by the petitioner pursuant to direction issued by this Court in O.P.No. 9492 of 2000, whereunder this Court waived penalty under Section 45A on payment of tax within one month from the date of judgment. Since conflicting views are expressed by two Division Bench of this Court, I feel the matter has to be considered by a Division Bench of this Court to consider reference to Full Bench. Accordingly, this O.P. is referred to a Division Bench for decision. Since the matter is referred I leave open all other contentions raised in the O.P. for argument before the Division Bench. (C.N. RAMACHANDRAN NAIR) Judge 3