IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 27TH SEPTEMBER 2010 / 5TH ASWINA 1932 WP(C).No. 29646 of 2010(E) --------------------------------- PETITIONER(S): ------------------- THYSSENKRUPP ELEVATOR (I) PVT.LTD., KATHRIKADAVU ROAD, KALOOR, COCHIN-17, REP.BY AUTHROSED SIGNATORY, MURALEEDHARA KAIMAL. BY ADV. SRI.A.KUMAR RESPONDENT(S): -------------------- 1. THE STATE OF KERALA, REP.BY THE SECRETARY, TAXES DEPT., GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-01. 2. THE COMMERCIAL TAX OFFICER, KVAT CIRCLE II, TRIPUNITHURA-20. 3. DEPUTY COMMISSIONER (APPEALS) DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM-10. R1 TO R3 BY GOVT.PLEADER SRI. C.K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SVS/ C.K. ABDUL REHIM, J ------------------------------ WP(C) NO. 29646 OF 2010 -------------------------------------- Dated this the 27th day of September, 2010 JUDGMENT Exts.P2 and P3 orders of assessments were finalized against the petitioner with respect to the years 2007-08 and 2008-09. Aggrieved by those assessments, the petitioner had preferred statutory appeals before the 3rd respondent as per Exts.P4 and P5. The petitioner had also preferred stay petitions along with the appeals, as evidenced from Exts.P6 and P7. Grievance of the petitioner is that without considering pendency of the appeals recovery steps has been initiated. Hence the petitioner seeks direction to restrain the recovery, pending disposal of the appeals. 2. It is pointed out that the petitioner Company is engaged in manufacture, supply and installation of elevators. With respect to the previous years, they claimed exemption on the total turnover on the basis that the transaction is works contract. However, the assessing authority rejected the claim holding that there is delivery of the end product, which will constitute sale. It is pointed out that with respect to the previous years, the petitioner had approached this Court during pendency of the appeals, and in Ext.P1 order this Court directed the assessing authority to withhold recovery of tax due on sale turnover of 2 WP(C) No. 29646/2010 'lifts', provided the petitioner pays 12.5% tax on 85% of the turnover. 3. It is also contended that tax deducted at source by different agencies of the Government, with whom the petitioner had entered into contracts, and certificates were issued by such authorities in Form 20 C and 20 F. Those certificates were not considered and deductions made thereunder were not given credit, alleging certain defects in those certificates. According to the petitioner inspite of minor defects those certificates will clearly prove that the deductions are made out of the contract bills paid by the concerned departments and other organizations. Therefore such amounts are liable to be given credit. 4. Learned Government Pleader appearing for the respondents pointed out that going by Ext.P5, it is doubtful as to whether the petitioner had filed an appeal within the time limit prescribed. However since the appeals as well as the stay petitions are pending consideration before the 3rd respondent, I am of the opinion that the questions need not be decided on its merits in this Writ Petition. In my view the Writ Petition can be disposed of on issuing necessary directions to the appellate authority. 5. In the result, the Writ Petition is disposed of directing the 3rd respondent to consider and pass orders on Exts.P6 and P7 stay petitions, if the appeals are properly registered. The appellant should be afforded with an opportunity of hearing and orders thereon shall be passed as early as 3 WP(C) No. 29646/2010 possible, at any rate within a period of one month from the date of receipt of a copy of this judgment. 6. Needless to say that while disposing the stay petition, the 3rd respondent shall take note of the relief granted by this Court through Ext.P1 (interim order in WP(C) 2122/2010 dated 21.01.2010) and also consider the TDS certificates produced as Ext.P8 series while granting interim order. 7. Till such time orders are passed by the 3rd respondent as directed above, realisation of amounts covered under Exts.P2 and P3 shall be kept in abeyance. The petitioner will produce a copy of this judgment before the 3rd respondent. C.K. ABDUL REHIM JUDGE dnc