IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 23RD SEPTEMBER 2011 / 1ST ASWINA 1933 WP(C).No. 2388 of 2006(H) ------------------------- PETITIONER(S): --------------------- M/S.PRIYADARSHINI INDUSTRIES, S.V.WARD, KAYAMKULAM, REPRESENTED BY TIS PROPRIETOR, K.SACHITHANANDA PRABHU. BY ADV. SRI.JOSE JOSEPH RESPONDENT(S): ------------------------- 1. THE SALES TAX OFFICER, KAYAMKULAM. 2. THE DEPUTY COMMISSIONER, COMMERCIAL TAXES, ALAPPUZHA. 3. THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE, ALAPPUZHA. 4. THE APPELLATE ASSISTANT COMMISSIONER, COMMERCIAL TAXES, ALAPPUZHA. BY GOVERNMENT PLEADER SRI.P.K.SHAMSUDHEEN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23.09.2011, THE COURT ON 23/09/2011 DELIVERED THE FOLLOWING: WP(C).No. 2388 of 2006(H) -------------------------------------- APPENDIX --------------- PETITIONER'S EXHIBITS ----------------------------------- EXT.P1. COPY OF ELIGIBILITY CERTIFICATE ISSUED BY 3RD RESPONDENT. EXT.P2. COPY OF ASSESSMENT ORDER FOR THE YEAR 1993-94 EXT.P3. COPY OF ASSESSMENT ORDER FOR THE YEAR 1994-95 EXT.P3A. COPY OF THE CERTIFICATE ISSUED BY THE 1ST RESPONDENT. EXT.P4. COPY OF NOTICE OF DEMAND FOR THE YEAR 1993-94. EXT.P5. COPY OF THE NOTICE OF DEMAND FOR THE YEAR 1994-05 EXT.P6 COPY OF THE COUNTER FOILS OF CHALLANS. EXT.P7. COPY OF THE COUNTER FOILS OF CHALLANS EXT.P8. COPY OF THE REVISED ASSESSMENT ORDER FOR THE YEAR 1994-95 EXT.P9. COPY OF THE REVISION BEFORE THE 2ND RESPONDENT. EXT.P10. COPY OF THE LETTER FROM PETITIONER TO 1ST RESPONDENT. EXT.P11. COPY OF THE LETTER FROM PETITIONER TO 2ND RESPONDENT. EXT.P12. COPY OF NOTICE FROM 2ND RESPONDENT. EXT.P13. COPY OF PROCEEDINGS OF 1ST RESPONDENT. EXT.P14. COPY OF ORDER OF THE 4TH RESPONDENT IN STA . 464/2003. EXT.P15. COPY OF ORDER OF THE SALES TAX APPELLATE TRIBUNAL IN T.A. 78/2004. EXT.P16. COPY OF THE ORDER OF THE1ST RESPODNENT EXT.P17. COPY OF THE JUDGMENT IN WPC . 26955/05. EXT.P18. COPY OF LETTER FROM PETITIONER TO 2ND RESPODNENT. EXT.P19. COPY OF PETITIONER'S LETTER TO 2ND RESPONDENT. EXT.P20. COPY OF PROCEEDING/LETTER OF THE 3RD RESPONDENT. RESPNDENT'S EXHIBITS : NIL ----------------------------------- / TRUE COPY / P.A. TO JUDGE VK S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 2388 of 2006 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 23rd day of September, 2011. J U D G M E N T The petitioner is an assessee under the Kerala General Sales Tax Act. The petitioner was entitled to exemption from payment of sales tax under certain Government orders. The eligibility for exemption has to be certified by the General Manager, District Industries Centre. The petitioner was originally granted certificate of eligibility. But the petitioner claimed additional exemption, which was originally rejected. After several rounds of litigation, ultimately, by Ext.P1 certificate, additional eligibility was certified. In the mean while, by Exts. P2 and P3 assessment orders, assessments for the years 1993-94 and 1995-96 had already been completed without granting additional exemption. The petitioner sought to invoke the suo motu review power of the 2nd respondent. Being unsuccessful, the petitioner has filed this writ petition seeking the following reliefs: “i. Call for the records of the case of Exts. P2, P3 & P8 orders and quash the same by the issue of a writ of certiorari or any other appropriate writ or order; ii. issue a writ of mandamus or any other appropriate writ or order directing the 1st respondent to pass fresh assessment orders under the KGST Act for the years 1993-94 and 1994- 95 and adjust/set off the tax due against the amount of exemption granted under Ext.P1; iii. quash Ext.P14 order by the issue of a writ of certiorari or any other appropriate writ or order and declare that the petitioner is entitled to refund of the amounts recovered from it towards tax for the years 1993-94 & 1994-95. W.P(C) No. 2388 of 2006 -: 2 :- iv. issue a writ of mandamus or any other appropriate writ or order directing the 1st respondent to adjust the tax due for the period 8/2001 to 3/2002 and for the year 2002-03 from the amount become refundable on passing fresh assessments for the years 1993-94 and 1994-95 and refund the excess amount to the petitioner; v. or in the alternative quash Ext.P20 and direct the 2nd respondent or 4th respondent, as the case may be, to modify/revise the assessment orders under the KGST Act for the years 1993-94 and 1994-95 granting the eligible exemption in terms of Ext.P1 and direct the assessing authority to refund the excess tax and interest collected from the petitioner after adjusting the tax due for the period 8/2001 to 3/2002 and tax due for the year 2002-03.” 2. The learned Government Pleader submits that Ext.P9 revision petition in this regard has been rejected as not maintainable. The learned Government Pleader therefore would argue that the petitioner is not entitled to the reliefs prayed for. 3. The respondents have not file any counter affidavit. 4. I have considered the rival contentions in detail. 5. The eligibility of the petitioner for the additional exemption is not any more in dispute in view of Ext.P1 eligibility certificate. The only contention raised by the learned Government Pleader is that since the assessment orders have not been challenged appropriately, the petitioner is not entitled to the reliefs prayed for. I am unable to countenance that contention insofar as if it is done, it would result in manifest injustice. The petitioner W.P(C) No. 2388 of 2006 -: 3 :- could not have challenged the assessment orders without obtaining the eligibility certificate. The delay in getting the eligibility certificate was not on account of any fault on the part of the petitioner. The petitioner had go through several rounds of litigation for getting that certificate. In the meanwhile, assessment orders had already been passed. When the petitioner could not challenge the assessment orders without obtaining Ext.P1 certificate, the petitioner could not be faulted for not challenging the assessment orders in time. The petitioner did the next best thing by invoking the suo motu powers of review of the 2nd respondent. This Court has, in the decision in Deputy Commisioner v. Balachandran, 1988 (69) STC 165, held that even an aggrieved party can invoke the suo motu power of the 2nd respondent. Whatever that be, I do not think that the petitioner can be denied his eligible exemption on such technical grounds. The very object of granting exemption is to promote industries. Government cannot by one hand give the benefit and take it away through another hand by delaying the process of certifying eligibility. After having certified eligibility of the petitioner for exemption, I do not think that the respondents can deny the benefit of exemption on such technical grounds. Accordingly, the writ petition is allowed. It is declared that the petitioner is entitled to exemption as certified in Ext.P1. The 1st respondent is directed to revise W.P(C) No. 2388 of 2006 -: 4 :- Exts. P2 and P3 assessment in accordance with the above finding and refund the excess sales tax paid by the petitioner as expeditiously as possible at any rate within two months from the date of receipt of a copy of this judgment. Sd/- S. Siri Jagan, Judge. Tds/