IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH FRIDAY, THE 29TH AUGUST 2008 / 7TH BHADRA 1930 WP(C).No. 26095 of 2008(F) -------------------------- PETITIONER: ------------ TMV AROMATICS PVT. LTD, 41/281 - B MAHAKAVI BHARATHIYAR ROAD, KOCHI 682 035, REPRESENTED BY ITS MANAGING DIRECTOR, SRI.T.V. RAJESH SHENOY. BY ADV. SRI.S.ANIL KUMAR (TRIVANDRUM) SRI.HARIHARAN NAIR RESPONDENTS: ------------- 1. COMMERCIAL TAX OFFICER (AA), ERNAKULAM. 2. COMMERCIAL TAX OFFICER, THIRD CIRCLE, ERNAKULAM. 3. THE DY. COMMISSIONER (AUDIT ASSESSMENT), COMMERCIAL TAXES, ERNAKULAM. 4. THE SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER ADV.SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH, J. ```````````````````````````````````````````````````` W.P.(C) No. 26095 OF 2008 F ```````````````````````````````````````````````````` Dated this the 29th day of August, 2008 J U D G M E N T Petitioner challenges Ext.P5. Ext.P5 is a notice issued to the petitioner by the 1st respondent. He seeks prohibition or order restraining the 1st respondent from cancelling the input tax credit already sanctioned as per Ext.P3. Case of the petitioner in brief is as follows. Petitioner is a dealer registered under the KVAT Act. It has local sales, interstate sales and export sales of zero rated. This means that no tax is chargeable on the sale of the goods but input tax credit or refund of input tax is admissible. The petitioner claimed input tax credit for the input tax in relation to export against the output tax payable by the petitioner on its local sales vide Ext.P1 return, which was partially accepted by Ext.P3 order in accordance with the directions and supervision of the 3rd respondent under section 23 of the Act. While so, Ext.P5 is issued proposing to disallow the input tax credit in relation to exports which is against the provisions of section 13(1) read with clause (lvii) of section 2, section 11(3) and also the clarification issued by the Commercial Taxes Department by Ext.P2. WPC.26095/08 : 2 : Petitioner filed Ext.P6 reply explaining the true legal position. But, he has approached this Court apprehending that a decision has already been taken. This is on the basis that the 1st respondent has informed orally that the proposals contained in Ext.P5 is going to be confirmed. 2. I heard learned Government Pleader also. There is no case as such that the officer who issued Ext.P5 has no jurisdiction to issue that notice. In such a case, I would think that this Court need not interfere with the matter under Article 226 of the Constitution particularly at this stage. Petitioner had already devised as Ext.P6 reply. I am sure that the officer will not give room for complaint that he will not consider the objection and the legal position when he considers Ext.P6. Accordingly, writ petition is disposed of directing that the 2nd respondent will consider each and every contention raised before him by the petitioner in response to Ext.P5, after affording an opportunity for hearing to the petitioner. Sd/- (K.M.JOSEPH, JUDGE) aks /TRUE COPY/ P.A.TO JUDGE