IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH TUESDAY, THE 16TH SEPTEMBER 2008 / 25TH BHADRA 1930 WP(C).No. 13912 of 2008(F) --------------------------------------------- PETITIONER: ----------------- M/S. BAKER & DAR SYSTEMS PVT. LTD., REGISTERED OFFICE, TC 28/1746, OFF PADMAVILASOM ROAD, PAZHAVANGADI, THIRUVANANTHAPURAM-695 023, REPRESENTED BY ITS EXECUTIVE DIRECTOR. BY ADV. SRI.D.S.SREEKUMARAN SMT.T.S.MAYA (THIYADIL) SMT.K.REENA RESPONDENTS: ----------------------- 1. THE COMMISSIONER OF COMMERCIAL TAXES, REVENUE OFFICE, THIRUVANANTHAPURAM. 2. THE COMMERCIAL TAX OFFICER, IIIRD CIRCLE, VASANTHAM TOWERS, PEROORKADA, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SHRI C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH, J. -------------------------------------- W.P.C. NO. 13912 OF 2008 F -------------------------------------- Dated this the 16th September, 2008 JUDGMENT The prayers in the Writ Petition are as follows: "i) Issue a writ of certiorari or any other appropriate writ, order or direction quashing Ext.P2 clarification issued by the first respondent in so far as computerised PCO monitors are concerned and in turn quash Ext.P1 notice and Ext.P7 assessment order and Ext.P7(a) demand notice. ii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the first respondent to take immediate steps on Ext.P4 representation and Ext.P9 reminder submitted by the petitioner." 2. Briefly put, the case of the petitioner is as follows: Petitioner is a dealer in telephone equipments and computerised monitors in retail. The computerised PCO monitors were treated as sub items of computers as it has in it, software, hardware, processor, display screen capable of taking WPC. 13912/08 F 2 inputs and giving display screen capable of taking inputs and giving display of outputs and printouts and it has every characteristic of a computer for limited capacity and purpose. For the assessment years 1999 - 2000 and 2000 - 2001, in the First Appeal carried by the petitioner, the Appellate Authority accepted the contentions of the petitioner in regard to the rate of tax being four per cent as against eight per cent at which the petitioner was assessed by the assessing authority. However, Ext.P1 notice was issued under Section 19 of the KGST Act, 1963. Therein, it is stated that the assessment was completed at the rate of four per cent and on subsequent scrutiny it was seen that PCO monitors are coming under Entry 55 of the First Schedule to the KGST Act, 1963 taxable at eight per cent and this has been clarified by Order dated 4.9.2004 issued by the Commissioner as a clarification. Ext.P1 is dated 14.3.2008. Ext.P2 is the clarification of the Commissioner dated 4.9.2004. Ext.P3 is an order of the Appellate Tribunal in respect of another assessee. Petitioner filed Ext.P4 reply before the WPC. 13912/08 F 3 Commissioner of Commercial Taxes, followed by Exts.P5 and P6. Ext.P7 is the order assessing the petitioner. Ext.P7 is dated 25.3.2008 confirming the proposal. Ext.P7(a) is the recovery notice. 3. I heard the learned counsel appearing for the petitioner and the learned Government Pleader. Learned counsel for petitioner submits that the Commissioner has acted illegally in issuing Ext.P2 clarification. He submits that the Appellate Assistant Commissioner by Ext.P3(a) order in relation to the assessment years 1999 - 2000 and 2000 - 2001, has taken the view that the petitioner is to be assessed at four per cent, accepting the contentions of the petitioner. It is further pointed out that in such circumstances, the first respondent Commissioner has acted illegally in issuing Ext.P2 clarification. He also refers to Ext.P3 order of the Tribunal. 4. Learned Government Pleader, on the other hand, points out that Ext.P1 is a re-assessment notice under Section 19 (1) of the KGST Act, 1963 and it relates to the assessment year 2004- WPC. 13912/08 F 4 2005 and there was no attempt to reopen the matter concluded by Ext.P3(a). He further points out that the issue as to whether PCO Monitor is to be taxed at four per cent or eight per cent, is concluded by a Bench decision of this Court in Eldho Paul v. The State of Kerala (2008(2) KLJ 593). Of course, learned counsel for petitioner would submit that the correctness of Ext.P2 is being considered in an Appeal filed by another party. 5. As far as the challenge to Ext.P2 clarification is concerned, I am of the view that I need not entertain the challenge. It is also not necessary for me to relegate the petitioner to file a petition before the Commissioner. This is for the reason that the question has been considered by the Division Bench of this Court and it has been held that the PCO Monitor is an electronic equipment and not a computer to be taxed at four per cent. In view of the Bench decision of this Court, I fail to see what purpose will be served in permitting the petitioner to move the Commissioner. Also in the light of the Judgment of this Court as aforesaid, holding that PCO Monitor is an WPC. 13912/08 F 5 electronic equipment and not a computer, the challenge to Ext.P2 clarification is only to be repelled. I accordingly repel the challenge of the petitioner to Ext.P2. As far as Ext.P7 assessment order is concerned, if the petitioner feels aggrieved, it is open to the petitioner to approach the appropriate statutory authority. The Writ Petition is disposed of as above. Sd/= K. M. JOSEPH, JUDGE kbk. // True Copy // PS to Judge