IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 26TH OCTOBER 2010 / 4TH KARTHIKA 1932 WP(C).No. 32554 of 2010(T) --------------------------------------- PETITIONER: ------------------- PODDAR PLANTATIONS, RIPPON ESTATE, MEPPADI, WAYANAD, REPRESENTED BY ITS SENIOR ACCOUNTS OFFICER, PRAKASH C.K. BY ADVS. SRI.ANIL D. NAIR, SMT.NIVEDITHA A.KAMATH. RESPONDENTS: ------------------------ 1. THE ASSISTANT COMMISSIONER, VAT SPECIAL CIRCLE (PRODUCE), MATTANCHERRY. 2. THE COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM. R1 & R2 BY SR. GOVT. PLEADER SRI. C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/10/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. C. K. ABDUL REHIM, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= W.P.(C) No. 32554 of 2010 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 26th day of October, 2010 JUDGMENT Petitioner is a registered dealer engaged in manufacture and sale of tea. With respect to returns filed for the period from April, 2006 to March, 2008, Exts.P1 and P2 notices were issued on the petitioner, intimating that the input tax claimed by him for the respective years could not be adjusted. According to the respondents, as per section 11(6) of the Kerala Value Added Tax Act, no adjustment can be effected, if the claim for credit of input tax is more than the output tax remitted by the dealer. In such case, the excess input tax remaining unadjusted need be claimed as refund by submitting proper application in Form No.21CC. Therefore, the amount to the extent which credit was sought for, was directed to be paid along with interest. 2. With respect to Exts.P1 and P2 the petitioner submitted detailed replies, as evidenced from Exts.P3 and P4. Without considering such replies, Exts.P7 and P8 W.P.(C) No. 32554/2010 2 notices were issued by the 1st respondent, proposing imposition of penalty under section 67(1) of the KVAT Act, alleging contumacious, wilful and blameworthy conduct on the part of the petitioner in not remitting tax due inspite of sufficient notice and time granted. It is stated that on receipt of Exts.P7 and P8, the petitioner further submitted Exts.P9 and P10 replies. Apprehension expressed by the petitioner is that on the basis of Exts.P7 and P8, the 1st respondent may impose penalty without taking note of the objections raised by the petitioner. Under such circumstances, the petitioner seeks necessary direction to the 1st respondent to consider Ets.P3 and P4 and to take a decision, after affording a reasonable opportunity of hearing to the petitioner. 3. Considering the fact that the matter is now pending before the 1st respondent, I do not find any reason to believe that the 1st respondent will finalize the proceedings without taking note of the contentions raised by the petitioner. 4. However, the writ petition is disposed of directing W.P.(C) No. 32554/2010 3 the 1st respondent to consider Exts.P3 and P4 as well as Exts.P9 and P10, before finalizing the proceedings pursuant to Exts.P7 and P8 notices. Needless to say that the petitioner shall be afforded a reasonable opportunity of hearing before finalizing such proceedings. C. K. ABDUL REHIM, JUDGE. mn.