IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 6TH FEBRUARY 2008 / 17TH MAGHA 1929 WP(C).No. 800 of 2008(T) ------------------------ PETITIONER: ------------ N.APPUKUTTAN, PROPRIETOR, HOTEL PLAZA, KALAVOOR, PATHIRAPPALLY P.O., ALAPPUZHA DISTRICT, 688521. BY ADV. SRI.V.P.SUKUMAR SRI.BEJOY CHERIYAN RESPONDENTS: ------------- 1. THE COMMERCIAL TAX OFFICER, IIND CIRCLE, ALAPPUZHA. 2. THE COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM. 3. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 4. THE DEPUTY TAHSILDAR(RR), AMBALAPUZHA TALUK, ALAPPUZHA. BY GOVERNMENT PLEADER SRI C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ------------------------------------ W.P.(C) 800 of 2008 ------------------------------------- Dated: February 6, 2008 JUDGMENT Petitioner is a registered dealer under the KGST Act. Following the introduction of the compounding scheme, under sec.7, petitioner had opted for the same and was permitted to pay turnover tax for the sales of Indian made foreign liquor at compounded rates. While so, he was issued Ext.P3 notice on 15.6.2007 requiring him to remit the balance turnover tax within five days from the date of receipt of the notice. Thereupon the petitioner filed Ext.P4 requesting for withdrawing the notice directing him to pay additional compounding fee. In the alternative, petitioner also prayed that if his explanation is not satisfactory, he be permitted to withdraw the compounding application and pay tax under sec.5 of the KGST Act. The request made in Ext.P4 was rejected by Ext.P5 and when revenue recovery steps were initiated by Exts.P6 and P7, this writ petition has been filed. WP(C) 800/08 Page numbers 2. I notice that a similar issue was dealt with by this court in Hotel Asoka v. Commercial Tax Officer - 2007 (4) KLT 718 where the scheme provided under sec.7 was upheld by this court and the challenge was repelled. However, after the judgment was pronounced in open court, on a request made by the appellants in that case, they were given permission either to opt for payment of turnover tax as per the compounding scheme or, as provided under sec.5(2) of the Act, on a suitable request being made by them to the assessing authority. 3. In this case, it is seen that such a request has been made by the petitioner in Ext.P4 itself. Though the learned Government Pleader attempted to distinguish the judgment referred to above on the basis that unlike in that case the petitioner did not challenge the scheme before this court, I do not find any merit in that objection raised by the learned Government Pleader. This is for the reasons that notice similar to Ext.P3 was issued to the petitioner in the decision referred to above much earlier and it was thereupon that he had challenged the notice before this court. Such an occasion arose for the petitioner only on receipt of Ext.P3 and immediately WP(C) 800/08 Page numbers thereafter he has filed this writ petition and in view of the aforesaid judgment, there is no scope for challenge against the scheme also. In view of the above, following the principle that has been laid down by the Division Bench in the decision referred to above, I direct that if the petitioner makes an application opting for paying tax under sec.5(2) of the KGST Act within three weeks from today, the assessing authority will consider the same in accordance with law and the benefit that has been granted to the parties to the judgment referred to above will be granted to the petitioner also. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE mt/-