IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR FRIDAY, THE 8TH FEBRUARY 2008 / 19TH MAGHA 1929 OP.No. 14209 of 2003(N) ----------------------- PETITIONER: ------------ K.APPUKUTTAN, ACHUTHAN, THURUTHEL, ULIYAKOVIL, KOLLAM. BY ADV. SRI.S.ABDUL RAZZAK RESPONDENTS: ------------- 1. THE SALES TAX OFFICER, III CIRCLE, KOLLAM. 2. THE APPELLATE ASSISTANT COMMISSIONER, COMMERCIAL TAXES, KOLLAM. 3. THE TAHSILDAR, KOLLAM. BY GOVERNMENT PLEADER SRI. K.P. PRADEEP THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 08/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 ORDER ON CMP 23915 OF 2003 IN OP 14209 OF 2003 DISMISSED 8.2.2008 SD/-C.N.RAMACHANDRAN NAIR, JUDGE. APPENDIX PETITIONER'S EXHIBITS: EXT.P1 PHOTOCOPY OF PRE-ASSESSMENT NOTICE DATED 20.2.2003 EXT.P2 PHOTOCOPY OF PRE-ASSESSMENT NOTICE DATED 13.3.2003 EXT.P3 PHOTOCOPY OF PETITIONER'S REPLY DATEDNIL TO EXT.P2 EXT.P4 PHOTOCOPY OF THE ASSESSMENT ORDER A946/1997-98 DATED 18.3.2003 BY R1 EXT.P5 PHOTOCOPY OF PETITIONER'S APPEAL DATED 28.3.2003 TO R2 EXT.P6 PHOTOCOPY OF PETITIONER'S STAY PETITION DATED 28.3.2003 BEFORE R2. RESPONDENTS' EXHIBITS: NIL. TRUE COPY P.S. TO JUDGE. C.N. RAMACHANDRAN NAIR, J. -------------------------------------------- O.P. NO. 14209 OF 2003 -------------------------------------------- Dated this the 8th day of February, 2008 JUDGMENT Petitioner is challenging the assessment and demand of tax under the KGST Act for the year 1997-98. Petitioner a dealer in IMFL did not pay the admitted tax and filed appeal against assessment which was dismissed as defective for non-payment of admitted tax. The order rejecting the appeal is not challenged. However, petitioner is challenging the assessment order directly in this Court through writ proceedings without paying admitted tax. I do not think petitioner should be permitted to challenge the assessment order in writ proceedings by bye-passing the statutory remedy. Since payment of admitted tax is a mandatory condition for maintainability of appeal, petitioner has no escape from it, but to remit the admitted tax and contest the matter before the statutory authority. Even though petitioner filed suit against assessment, it is reported that the said suit was withdrawn. In any case, since O.P. is pending long in this Court, I feel petitioner can be given one more opportunity to pay the admitted 2 tax with full interest to restore appeal. If payment is made within two weeks from the date of receipt of a copy of this judgment, there will be direction to the appellate authority to restore the appeal to file and dispose of the same within two months thereafter. However, this will not act as a stay against recovery of the assessed tax because petitioner has not complied with the interim orders of this Court in regard to payment. Therefore respondents are directed to proceed for recovery of the entire tax due subject to result of appeal, if any, revived and pursued by the petitioner. O.P. is disposed of as above. (C.N. RAMACHANDRAN NAIR) Judge kk 3