IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 14TH JUNE 2011 / 24TH JYAISHTA 1933 WP(C).No. 14450 of 2011(E) -------------------------- PETITIONER ------------------- M/S.TRINUNE ESTATES, ANANTHANAM STUDIOS, DOOR NO.42/2033, OLD RAILWAY STATION CROSS ROAD, ERNAKULAM, COCHIN-18, REP. BY ITS MANAGING PARTNER, NITA CHACKO. BY ADVS. SRI.S.SANTHOSH KUMAR SRI.S.VINODKUMAR SMT.P.LISSY JOSE. RESPONDENT(S): ----------------------- 1. THE STATE OF KERALA, REP. BY ITS SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695001. 2. THE INTELLIGENCE OFFICER, SQUAD NO.IV, OFFICE OF THE DEPUTY COMMISSIONER (INTELLIGENCE), DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM AT EDAPPALLY-682024. 3. THE INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAXES, CIVIL STATION, KAKKANAD, ERNAKULAM-30. * 4. THE DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES, THEVARA, ERNAKULAM. (IMPLEADED AS ADDITIONAL 4th RESPONDENT AS PER ORDER IN I.A.No.8915 of 2011 dated 14.6.2011. BY GOVERNMENT PLEADER SRI.V.K.SHAMSUDHEEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 14450 of 2011(E) -------------------------------------- IA NOS.8915 AND 8916 OF 2011 IN 14450/2011 ALLOWED 14.6.2011 Sd/- C.K.ABDUL REHIM, JUDGE APPENDIX --------------- PETITIONER'S EXHIBITS ----------------------------------- EXT.P1. COPY OF THE NOTICE DATED 08.12.2010 FOR THE YEAR 2005-2006. EXT.P1 (A): COPY OF THE NOTICE DATED 08.12.2010 FOR THE YEAR 2006-2007 EXT.P2. COPY OF THE OBJECTION DATED 27.12.2010 FILED BY THE PETITIONER FOR THE ASSESSMENT YEAR 2005-2006. EXT.P2(A). COPY OF THE OBJECTION DATED 27.12.2010 FILED BY THE PETITIONER FOR THE ASSESSMENT YEAR 2006-2007. EXT.P3. COPY PAGE NOS.2 TO 10 OF THE AGREEMENT OF SALE DATED 27.1.2006. EXT.P4. COPY OF SERVICE TAX CHELLANS DATED 23.1.06, 31.3.06, 30.7.06 & 4.10.06. EXT.P5. COPY OF THE PENALTY ORDER DATED 28.2.2011 FOR THE YEAR 2005-2006 EXT.P5(A). COPY OF THE PENALTY ORDER DATED 28.2.2011 FOR THE YEAR 2006-2007. EXT.P6. COPY OF THE APPEAL MEMORANDUM DATED 31.5.2011 FOR THE YER 2005-2006 EXT.P7. COPY OF THE APPEAL MEMORANDUM DATED 31.5.2011 FOR THE YER 2006-2007 EXT.P7(A). COPY OF THE STAY PETITION DATED 31.5.2011 FILED IN THE APPEAL FOR THE YEAR 2005-2006 EXT.P7(A). COPY OF THE STAY PETITION DATED 31.5.2011 FILED IN THE APPEAL FOR THE YEAR 2006-2007 RESPONDENT'S EXHIBITS : NIL ------------------------------------- / TRUE COPY / P.A. TO JUDGE VK C.K.ABDUL REHIM, J. ------------------------------- W.P.(C).No.14450 of 2011 ------------------------------- Dated this the 14th day of June, 2011. J U D G M E N T This writ petition is filed challenging Exts.P5 and P5(a), through which penalty was imposed against the petitioner under Section 67(1) of the Kerala Value Added Tax Act (KVAT Act). When the writ petition came up for admission, this Court was not inclined to entertain the matter in view of the effective remedy of statutory appeal provided under the KVAT Act. However, the petitioner sought time for approaching the appellate authority. Subsequently, the petitioner had produced copies of Exts.P6 and P6(a) appeals filed against the orders imposing penalty, accompanied with Exts.P7 and P7(a) stay petitions. The appeals and stay petitions are stated to be pending consideration before the additional 4th respondent. 2. Contention of the petitioner is that, the penalty was imposed on the basis of an allegation of suppression of turn over, which was in fact not in existence. The alleged 2 W.P.(C).No.14450 of 2011 suppression pertains to sale consideration received from the flat owners with respect to transfer of land and Service Tax collected from such customers which is already remitted to the concerned department, is the contention. It is further contended that if deduction is given with respect to such amounts, there will not be any suppression as alleged. 3. I take note of the fact that the challenges against orders imposing penalty is now pending consideration before the appellate authority. Hence I am not proposing to enter upon any findings regarding merits of such contentions. Interest of justice will be served, if a direction is issued to the appellate authority to expedite the matter. 4. Accordingly, the writ petition is disposed of directing the additional 4th respondent to consider and pass orders on Exts.P7 and P7(a) stay petitions filed along with Exts.P6 and P6(a) appeals, after affording an opportunity of personal hearing to the petitioner, as early as possible, at any rate within a period of one month from the date of receipt of a copy of this judgment. Needless to say that, the 3 W.P.(C).No.14450 of 2011 appellate authority shall take note of the contentions raised by the petitioner as narrated above, while deciding the question of granting interim relief. 5. Till such time orders are passed by the appellate authority as directed above, recovery of amounts covered under Exts.P5 and P5(a) orders shall be kept in abeyance. The petitioner will produce a copy of this judgment before the 4th respondent. C.K.ABDUL REHIM, Judge ami/