IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 2ND JUNE 2011 / 12TH JYAISHTA 1933 WP(C).No. 9593 of 2011() ------------------------ PETITIONER(S): --------------- JOSE MATHEW,ROYAL MARBLES AND GRANITES, MUTTUCHIRA,KADUTHURUTHY,KOTTAYAM DISTRICT. BY ADV. SRI.R.MURALIDHARAN (AROOR) RESPONDENT(S): 1 ---------------- 1. THE COMMERCIAL TAX OFFICER,DEPARTMENT OF COMMERCIAL TAXES,VAIKOM-686141. 2. THE INTELLIGENCE OFFICER,SQUAD NO.V, DEPARTMENT OF COMMERCIAL TAXES,KOTTAYAM-682002. 3. THE DEPUTY COMMISSIONER(APPEALS), DEPARTMENT OF COMMERCIAL TAXES,ERNAKULAM, PIN-682015. BY SR. GOVERNMENT PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J --------------------------------------- W.P(C) No.9593 of 2011-Y ---------------------------------------- Dated this the 2nd day of June, 2011. J U D G M E N T Ext.P4 notice issued proposing to complete the assessment with respect to the year 2009-10 under Section 25(1) of the Kerala Value Added Tax Act (KVAT Act), is challenged in this writ petition. According to the petitioner the proposal for finalisation of the assessment is issued based on an inspection conducted by the 2nd respondent at the business place of the petitioner, on 6.9.2009, and on the basis of penalty imposed under Section 67(1) through Ext.P1. It is stated that, against Ext.P1 order, the petitioner had filed an appeal before the 3rd respondent, as evidenced from Ext.P2. It is further pointed out that the 3rd respondent had granted conditional stay order with respect to realisation of the amounts of penalty, as per Ext.P3, which was subsequently modified by this Court in W.P(C) No.7122/2011. Grievance of the petitioner is that, if the assessment is finalised before the disposal of Ext.P2 appeal, W.P(C) No.9593 of 2011-Y 2 it will cause severe prejudice. The petitioner expects that the appellate authority will interfere with Ext.P1 penalty order and on that basis the petitioner can substantiate before the assessing authority that the assessment proposed on the basis of the inspection, is unsustainable. Therefore, the petitioner is seeking direction to the 1st respondent, assessing authority, to keep in abeyance the proceedings for finalisation of assessment, till the disposal of the appeal by the 3rd respondent. 2. In the statement filed on behalf of the 1st respondent, it is mentioned that pendency of the appeal filed against the penalty order is not a sustainable ground for postponing the assessment, which is a distinct proceeding initiated under Section 25(1). It is further mentioned that, the petitioner can very well seek adjournment of the matter by filing a detailed objection raising such contentions. 3. Considering the facts and circumstances as narrated above, I am of the view that interest of justice will W.P(C) No.9593 of 2011-Y 3 be served if a direction is issued to the assessing authority to keep in abeyance passing of final order till the disposal of Ext.P2 appeal by the 3rd respondent. Further the 3rd respondent can be directed to dispose of the appeal on an early basis, since it is stated that the petitioner had already complied with the condition stipulated by this Court while modifying the interim order. However, it is left open to the petitioner to file objections against Ext.P4 proposal, in the meanwhile. 4. Under the above circumstances, the writ petition is disposed of directing the 3rd respondent to consider and dispose of Ext.P2 appeal after affording an opportunity of hearing to the petitioner, as early as possible, at any rate within the period of six weeks from the date of receipt of a copy of this judgment. 5. The petitioner is given liberty to file objections against Ext.P4 within a period of two weeks from the date of receipt of a copy of this judgment. However, the 1st respondent is restrained from passing of final orders till the W.P(C) No.9593 of 2011-Y 4 3rd respondent dispose of Ext.P2 appeal, and the petitioner is given an opportunity to produce copy of the order passed on that appeal. It is made clear that, the 1st respondent will be at liberty to finalise the assessment if there is any non- co-operation from the side of the petitioner, even after disposal of Ext.P2 appeal. C.K.ABDUL REHIM JUDGE ab