IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH FRIDAY, THE 11TH JULY 2008 / 20TH ASHADHA 1930 WP(C).No. 19098 of 2008(W) ------------------------------------------------ PETITIONER: ------------------ P.J.A.MANOJ, PEEJAYE ENTERPRISES, KUTTOOR, THIRUVALLA. BY ADV. SRI.ARIKKAT VIJAYAN MENON SRI.HARISANKAR V. MENON RESPONDENTS: ----------------------- 1. COMMERCIAL TAX OFFICER-I, THIRUVALLA. 2. DEPUTY COMMISSIONER (APPEALS), KOLLAM. 3. TAHSILDAR, TALUK OFFICE, THIRUVALLA. BY GOVERNMENT PLEADER SHRI C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH, J. -------------------------------------- W.P.C. NO. 19098 OF 2008 W ---------------------------------------- Dated this the 11th July, 2008 JUDGMENT The Writ Petition is filed seeking the following reliefs: "(i) Quash Exts.P4 & P6 orders passed by the first respondent by issue of a certiorari or such other writ, order or direction. (ii) Alternatively, direct the 2nd respondent to dispose of Ext.P5 appeal expeditiously by the issue of a writ of mandamus or such other writ or order or direction." 2. Briefly put, the case of the petitioner is as follows: Petitioner came to be assessed by Ext.P1 order for the year 1999 - 2000. There were three additions made. First addition made in a sum of Rs.13,89,472/= was on the premise that purchase of scrap battery is liable to be taxed under Section 5A. The job work receipt for Rs.51,046/- is disallowed and assessed to tax. Thirdly, it was found that the petitioner had effected unaccounted purchase of charcoal for Rs.3,55,000/= and for that WPC. 19098/08 W 2 reason an addition of Rs.40,60,185/= is effected. Petitioner preferred First Appeal. By Ext.P2 order, the addition made under Section 5A was deleted. The addition of job works was directed to be reconsidered. The addition of alleged purchase of charcoal/suppression was also directed to be reconsidered. The Revenue preferred Second Appeal against Ext.P2 before the Tribunal. Petitioner also preferred Cross Objection. It is the case of the petitioner that by Ext.P3, the Tribunal has reversed t4he finding of the appellate authority with respect to the levy of tax under Section 5A. With respect to the other two additiona, it is the case of the petitioner that the findings in Ext.P2 were upheld. However, the assessing authority again completed the assessment on the score that the Appeal filed by the Revenue was allowed. Petitioner preferred Ext.P5 Appeal against Ext.P4. That is alleged to be pending from the year 2004. While so, petitioner preferred Revision against the order of the Tribunal in relation to the Assessment under Section 5A. This Court allowed the Revision and found the levy of tax under WPC. 19098/08 W 3 Section 5A incorrect. This order, according to the petitioner, stands implemented by Ext.P6. By Ext.P6 however, the demand is premised on the giving effect to the Judgment of this Court and at the same time assessing the petitioner on the basis of the assessment already completed vide Ext.P4. It is the case of the petitioner that the Appeal filed against Ext.P4 is pending since 2004. It is also contended that a perusal of Ext.P2 order of the appellate authority will clearly show that the assessing authority was directed to verify the signature and even if the petitioner did not respond to the pre-assessment notice issued as is evident from Ext.P3, it is the bounden duty of the assessing authority to comply with the directions of the appellate authority. Of course, the learned counsel for the petitioner has a case that the petitioner was unable to respond to the pre-assessment notice. I heard the learned Government Pleader also. 3. Having regard to the totality of the facts present, I am inclined to grant the alternative prayer sought for by the petitioner. Accordingly, the Writ Petition is disposed of WPC. 19098/08 W 4 directing the second respondent to consider Ext.P5 appeal and take a decision in accordance with law, after affording an opportunity of being heard to the petitioner, within a period of three months from the date of receipt of a copy of this Judgment. The recovery proceedings against the petitioner will be kept in abeyance only if the petitioner remits a sum of Rs.50,000/= (Rupees Fifty Thousand) within ten days from today and another sum of Rs.25,000/= (Rupees Twentyfive Thousand) within a further period of ten days from the date of payment of Rs.50,000/=. Sd/= K. M. JOSEPH, JUDGE kbk. // True Copy// PS to Judge