IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH MONDAY, THE 6TH OCTOBER 2008 / 14TH ASWINA 1930 WP(C).No. 29424 of 2008(C) -------------------------- PETITIONER(S): --------------------- P. HASHIM, PROPRIETOR, P.H. LINES, CW 35/3185, GOPAL STREET, KANNUR, PIN - 670 001. BY ADV. SRI.VIJAYAN. K.U. SRI.K.N.SREEKUMARAN RESPONDENT(S): ----------------------- 1. COMMERCIAL TAX OFFICER (AA), COMMERCIAL TAXES, KANNUR - 670 001. 2. THE DEPUTY COMMISSIIONER (APPEALS), COMMERCIAL TAXES, KOZHIKODE, PIN - 673 011. 3. INSPECTING ASSISTANT COMMISSIOINER, COMMERCIAL TAXES, KANNUR - 670 002. 4. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, GOVERNMENT SECRETRIAT, THIRUVANANTHAPURAM-695 001. BY GOVT. PLEADER SRI. C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - WP.(C) No.29424 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of October, 2008 JUDGMENT Case of the petitioner in brief is as follows: Petitioner is a dealer in mosquito repellants, disinfectants registered under the Kerala Value Added Tax Act. On the basis of the clarification by the Commissioner dated 7.4.2006 the items are taxable at 12.5%. The supplier of the petitioner paid the differential tax on the basis of the decision of this court in O.T.A. 6 of 2006 filed challenging the clarification issued by the Commissioner. The supplier advised the petitioner and the sub distributor to take input tax credit of the further tax paid by the supplier on the strength of the debit notes. Assessment came to be finalised demanding tax and interest without considering the objection of the petitioner. Petitioner has preferred Ext.P5 appeal accompanied by Ext.P5(b) stay application. It is the contention of the learned counsel for the petitioner that the disallowance of input tax credit is quite opposed to third proviso to Section 11(4) inserted by Finance Act, 2007. It is further contended that the Apex Court has remanded the decision in O.T.A.6 of 2006 with certain directions, which included the direction that the order of clarification will only apply for the period from 7.4.2006 onwards. It is WPC.29424/2008. 2 stated that the appeal, which has been remanded by the Apex Court, has been partly heard by the Division Bench. I feel that the petitioner should be permitted to urge all the contentions in the application for stay, which will be considered. There will be a direction to the second respondent to consider and take a decision on Ext.P5(b) application for stay in accordance with law within a period of six weeks from the date of receipt of a copy of this judgment. Proceedings pursuant to Ext.P6 will be kept in abeyance till a decision is taken on the stay application. Petitioner will produce a copy of this judgment before the second respondent as soon as it is received. (K.M. JOSEPH, JUDGE) sb