IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH WEDNESDAY, THE 4TH JUNE 2008 / 14TH JYAISHTA 1930 WP(C).No. 16576 of 2008(W) -------------------------- PETITIONER: ----------------- UNITRADES, TV 990, THAVAKKARA ROAD, KANNUR-670 001, REPRESENTED BY K.P.SIYAD, MANAGING PARTNER. BY ADV. SRI.VIJAYAN. K.U. SRI.K.N.SREEKUMARAN RESPONDENTS: -------------------- 1. COMMERCIAL TAX OFFICER (AA), COMMERCIAL TAXES, KANNUR, PIN-670 001. 2. INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAXES, KANNUR, PIN-670 002. 3. THE DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES, KOZHIKODE, PIN-673 011. 4. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001. BY GOVT. PLEADER SRI. C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - WP.(C) No. 16576 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of June, 2008 JUDGMENT Petitioner-firm is a dealer in mosquito repellants and disinfectants on the rolls of the second respondent. Consequent on a dispute as to the rate of tax applicable, the suppliers sought clarification and the Commissioner clarified that the items dealt with by the supplier except rat kill were taxable at 12.5%. The Supplier-company filed OTA. No.6 of 2006. The court held that the goods in question except rat kill were taxable at 12.5%. The supplier paid over the differential tax for the years 2005-06 and 2006-07 and issued debit notes to the petitioner. Petitioner claimed additional input tax credit for 2005-06. To Ext.P1 notice under Section 24 (1) of the Kerala Value Added Tax Act, petitioner filed Ext.P2 reply. Without properly considering the reply, it is the case of the petitioner, that Ext.P3 order came to be passed demanding Rs.6,26,066/-. Petitioner preferred Ext.P4 appeal and it is now faced with Ext.P5 recovery notice. It is the further case of the petitioner that aggrieved by the judgment of this court in OTA. 6 of 2006 the Company took the matter before the Apex Court and the Apex Court remitted back the matter by Ext.P6 judgment. WPC.16576/2008. 2 According to the petitioner the disputed tax Rs.1,39,706/- has a definite bearing on Ext.P6 judgment. It is also stated that the petitioner firm may not have any liability at all when the matter is disposed of by this court pursuant to the judgment of the Apex Court. 2. I heard learned Government Pleader also. 3. Learned counsel for the petitioner ofcourse submits that having regard to Ext.P6 judgment of the Apex Court the matter has to be considered by this court in this writ petition. 4. I am of the view that the petitioner having preferred Ext.P4 appeal along with stay petition, a decision should be taken on the same. It is certainly open to the petitioner to rely on Ext.P6 judgment of the Apex Court also among other contentions to be urged before the appellate authority when addressing its contentions in regard to the validity of Ext.P3 order. I am sure that the appellate authority will give due weight to Ext.P6 judgment as required of him under law. Subject to these observations, the writ petition is disposed of directing the second respondent to consider and take a decision on Ext.P4 application for stay in accordance with law within a period of three weeks from the date of receipt of a copy of this judgment. Till such time as a decision is taken, recovery proceedings pursuant to Ext.P5 will be kept in WPC.16576/2008. 3 abeyance. Petitioner will produce a copy of this judgment before the second respondent as soon as it is received. (K.M. JOSEPH, JUDGE) sb