IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 1ST JUNE 2011 / 11TH JYAISHTA 1933 WP(C).No. 13198 of 2011(Y) ---------------------------------------- PETITIONER(S): ------------------------ JYOTHY LABORATORIES LIMITED, KANDANASERRY P.O., THRISSUR. REPRESENTED BY ITS SENIOR OFFICER (ACCOUNTS)- SRI.T.V. TILAKAN BY ADV. SRI.P.RAGHUNATH SRI.PREMJIT NAGENDRAN RESPONDENT(S): -------------------------- 1. ASSISTANT COMMISSIONER (ASSESSMENT), COMMERCIAL TAXES, SPECIAL CIRCLE, THRISSUR-680 004. 2. THE INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAXES, THRISSUR-680 004. 3. DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES, ERNAKULAM-682 015. R1 TO R3 BY SENIOR GOVERNMENT PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.13198 of 2011 ------------------------------------------- Dated this the 1st day of June, 2011 J U D G M E N T ---------------------- Ext.P1 order of assessment was challenged by the petitioner through statutory appeal filed before the 2nd respondent, as per Ext.P2. Along with the appeal Ext.P3 stay petition was also filed. It is stated that the appeal as well as the interim application are pending consideration and disposal before the 2nd respondent. 2. The dispute raised in the appeal solely pertains to rate of tax applicable to the products dealt with, namely 'Ujala Supreme' and 'Ujala Stiff & Shine'. Learned Government Pleader points out that a clarification issued by the Commissioner, Commercial Taxes in exercise of power under Section 94 of the Kerala Value Added Tax Act (KVAT Act) has already been upheld by a Division Bench of this court, in an appeal (OTA) filed against such clarification. It is further submitted that a tax revision case filed against an order of the State Appellate Tribunal taking a different view has also been reversed recently, by a Division Bench of this court. W.P.(C).13198/11 -2- 3. On the other hand, learned counsel for petitioner submits that the decision of this Court with respect to the clarification issued by the Commissioner is now under challenge before the Hon'ble Supreme Court, in a Special Leave Petition filed. It is also stated that Special Leave Petition is being filed against decision in the tax revision case. According to him the ultimate decision has to come from the Hon'ble Supreme Court on the question regarding the rate of tax applicable. Under such premise he seeks stay of the recovery steps, till the disposal of the appeal. It is pointed out by the learned Government Pleader that there is no stay granted by the Hon'ble Supreme Court and as per the legal position now stands settled, the petitioner is liable for payment of the amounts as assessed. 4. Considering pendency of the appeal before the statutory authority, I am of the view that interest of justice will be served if a direction is issued for an expeditious disposal of the matter and to restrain the recovery steps subject to conditions. Of course, the ultimate liability will depend upon the outcome of the matter which is now pending before the Hon'ble Supreme Court. 5. Under the above mentioned circumstances, the writ petition is disposed of directing the 2nd respondent to consider W.P.(C).13198/11 -3- and dispose of Ext.P2 appeal, after affording an opportunity of hearing to the petitioner, as early as possible, at any rate, within a period of two months from the date of receipt of a copy of this judgment. 6. Till such time the appeal is disposed of as directed above, recovery of amounts covered under Ext.P1 order of assessment shall be kept in abeyance, subject to condition of the petitioner remitting 50% of the amount due under the assessment order and on furnishing Security Bond for the balance amount, within a period of three weeks from the date of receipt of a copy of this judgment. C.K.ABDUL REHIM, JUDGE. okb