IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 25TH OCTOBER 2011 / 3RD KARTHIKA 1933 WP(C).No. 28327 of 2011(M) ---------------------------------------- PETITIONER(S): ------------------------ TRACK, KUNNATHURMEDU, PALAKKAD, REPRESENTED BY ITS MANAGING PARTNER, K.PRAKASH. BY ADV. SRI.S.ANIL KUMAR (TRIVANDRUM) SRI.K.S.HARIHARAN NAIR SRI.K.UMAMAHESWAR RESPONDENT(S): ---------------------------- 1. COMMERCIAL TAX OFFICER, 2ND CIRCLE, PALAKKAD, PIN-678 001. 2. THE ASST.COMMISSIONER (APPEALS), COMMERCIAL TAXES, PALAKKAD. PIN-678 001. 3. THE INSPECTING ASST.COMMISSIONER, COMMERCIAL TAXES, PALAKKAD, PIN-678 001. R1 TO R3 BY GOVERNMENT PLEADER SMT.SHOBA ANNAMA EAPEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.28327/2011 APPENDIX PETITIONER(S) EXHIBITS EXT.P1(A)- COPY OF ASSESSMENT ORDER DATED 29-05-2009 FOR THE YEAR 2005-2006. EXT.P1(B)- COPY OF ASSESSMENT ORDER DATED 29-05-2009 FOR THE YEAR 2006-2007. EXT.P2(A)- COPY OF APPEAL MEMORANDUM AGAINST EXT.P1(A). EXT.P2(B)- COPY OF APPEAL MEMORANDUM AGAINST EXT.P1(A). EXT.P3(A)- COPY OF NOTICE DATED 1-10-2009 OF THE 3RD RESPONDENT FOR THE YEAR 2005-2006. EXT.P3(B)- COPY OF NOTICE DATED 1-10-2009 OF THE 3RD RESPONDENT FOR THE YEAR 2006-2007. EXT.P4- COPY OF LETTER DATED 13-11-2009 ADDRESSED TO THE IST RESPONDENT. EXT.P5(A)- COPY OF ORDER DATED 3-08-2011 OF THE 2ND RESPONDENT ON EXT.P2(A). EXT.P5(B)- COPY OF ORDER DATED 3-08-2011 OF THE 2ND RESPONDENT ON EXT.P2(B). EXT.P6(A)- COPY OF RECTIFICATION PETITION AGAINST EXT.P5(A). EXT.P6(B)- COPY OF RECTIFICATION PETITION AGAINST EXT.P5(B). EXT.P6(C)- COPY OF ACKNOWLEDGMENT FOR EXT.P6(A) AND EXT.P1(B). RESPONDENTS' EXHIBITS : NIL /TRUE COPY/ P.A.TO.JUDGE sts S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 28327 of 2011 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of October, 2011 J U D G M E N T Against assessment orders passed against the petitioner, the petitioner filed appeals. The appeals have been disposed of by Exts.P5 (a) & P5 (b) orders. The petitioner's grievance is that, a specific contention raised by the petitioner has not been considered by the appellate authority. Certain discounts received by the petitioner has been assessed to tax. According to the petitioner, that discount was given by way of tyres and those tyres given as discount have been sold by the petitioner in respect of which the petitioner has already paid tax and therefore the petitioner has in fact paid tax in respect of the discount also. According to the petitioner, this crucial aspect has not been considered by the appellate authority although a ground has been specifically raised before the appellate authority. W.P.(C)No. 28327 of 2011 -2- 2. The learned Government Pleader points out that, that question has been specifically considered in the appellate orders. She points out the relevant paragraph of the appellate order: “The authorized representative Sri. S.Anilkumar, Advocate, appeared and argued the matter. He is heard. The appellant has himself admitted that what the appellant had received was tyres by way of credit notes. Section 7 of the KVAT Act clearly lays down that where a dealer allows any trade discount or incentive in terms of quantity in goods in relation to any sale effected by him the quantity so allowed as trade discount or incentive shall be deemed to be a sale by the dealer purchase by the dealer who receives such discount. In the light of the admission by the appellant and by virtue of Section 7 enunciated above the amount of Rs.4,33,710/- received as quantity discount is part of turnover and has rightly been taxed. Therefore the arguments of the appellant are rejected.” But the petitioner contends that, that consideration is only as to whether the tyres were received by credit notes and the question as to whether the petitioner has sold those tyres and paid tax in respect of the same has not been considered. The petitioner now submits that, against those orders, the petitioner has filed Exts.P6 (a) & P6 (b) rectification petitions. The petitioner seeks a direction to the appellate authority to consider and pass orders on Exts.P6 (a) & P6 (b) rectification petitions expeditiously. W.P.(C)No. 28327 of 2011 -3- In the facts and circumstances of the case, I dispose of this writ petition with a direction to the 2nd respondent to consider and pass orders on Exts.P6 (a) & P6 (b) rectification petitions, as expeditiously as possible. Till orders are thus passed, further coercive proceedings for recovery of the disputed tax in respect of the discount shall be kept in abeyance. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/