IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH MONDAY, THE 16TH JUNE 2008 / 26TH JYAISHTA 1930 WP(C).No. 17494 of 2008(G) -------------------------- PETITIONER: ------------ M/S.EASTERN AQUA MINERALS, SREEMOOLANAGARAM, ALUVA, ERNAKULAM DISTRICT, REPRESENTED BY M.E.MOHAMMED, MANAGING PARTNER. BY ADV. SRI.ARIKKAT VIJAYAN MENON SRI.HARISANKAR V. MENON RESPONDENTS: ------------- 1. COMMERCIAL TAX OFFICER-I, ALUVA. 2. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER ADV.SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH, J. ```````````````````````````````````````````````````` W.P.(C) No. 17494 OF 2008 G ```````````````````````````````````````````````````` Dated this the 16th day of June, 2008 J U D G M E N T Exts.P8 and P9 assessment orders are under challenge. The case of the petitioner in brief is as follows. Petitioner is a Small Scale Industrial unit engaged in the manufacture and sale of packed drinking water and soda. According to the petitioner, the petitioner was exempted from sales tax on the sales turnover of soda as per Ext.P1 and there is no exemption in respect of packed drinking water. Packed drinking water is liable to tax only at 8%. Assessment for the years 2000-01, 2001-02 and 2002-03 were completed levying tax on the sales turnover of packed drinking water at 20%. The petitioner challenged these assessment orders in appeals. Exts.P2 and P3 appellate orders were passed fixing the rate of tax of the turnover of packed drinking water at 8%. Thereafter, the petitioner has served with Exts.P4 and P5 notices to which the petitioner filed Exts.P6 and P7 replies. WPC.17494/08 : 2 : Again, the petitioner has served with Exts.P8 and P9 orders imposing tax on packed drinking water at 20% for the assessment years 2003-4 and 2004-05. At this stage, the petitioner has approached this Court by filing the writ petition. 2. I have heard the learned counsel for the petitioner and the learned Government Pleader. The learned counsel for the petitioner contends that as far as levying of tax at 20% in respect of packed drinking water is concerned, the appellate authority fixed the tax at 8% for the assessment years 2000-01, 2001-02 and 2002-03. Therefore, the assessing authority should not have deviated from the same in passing the assessment orders for the assessment years 2003-04 and 2004-05. In this connection, it is pointed out that the petitioner has specifically brought it to the notice of the assessing authority in his replies that the appellate authority has passed orders holding that packed drinking water can be taxable at 8%. Despite of this, the assessing authority, without any discussion, proceeded to pass an order WPC.17494/08 : 3 : demanding differential tax treating it as taxable at 20%, he complains. 3. The learned counsel for the petitioner further points out that though there was no proposal in the pre-assessment notices to deny the benefit of the exemption to which the petitioner is entitled under Ext.P1, the benefit of exemption has not been granted for the assessment years in question stating that there was suppression and exemption has been withdrawn from the year 2001. This is in violation of the principles of natural justice, it is contended. 4. Having considered all the relevant facts, I feel that the petitioner can be relegated to file appeals against Exts.P8 and P9, after directing the recovery proceedings against the petitioner on the basis of Exts.P8 and P9 will be kept in abeyance till the disposal of the appeals, if the petitioner remits the amount due under Exts.P8 and P9 in so far as it relates to turnover assessed based on denial of exemption. Accordingly, the writ petition is disposed of as follows. WPC.17494/08 : 4 : 5. If the petitioner prefers appeals against Exts.P8 and P9 within ten days from today, the appeals will be decided on merits. In the meantime, recovery steps will be kept in abeyance on condition that the petitioner remits the amount due under Exts.P8 and P9 relating to turnover assessed on the basis of denial of exemption. The deposit will subject to the result of the appeals. The petitioner will deposit the amount as aforesaid within one month from today. (K.M.JOSEPH, JUDGE) aks