IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR WEDNESDAY, THE 9TH JANUARY 2008 / 19TH POUSHA 1929 OP.No. 21721 of 2001(J) ----------------------- PETITIONER: ------------------- M/S.J.N.B.MARKETING (INDIA) LTD; OMANA BUILDINGS, JEWS STREET, ERNAKULAM, REP: BY ITS MANAGING DIRECTOR P.U.JOSE. BY ADV. SRI.V.P.SUKUMAR RESPONDENTS: ---------------------- 1. THE ASST.COMMISSIONER (ASST.), SALES TAX OFFICE, SPECIAL CIRCLE-I, ERNAKULAM, COCHIN : 15. 2. THE STATE OF KERALA, REP: BY THE PRINCIPAL SECRETARY TO GOVERNMENT, TAXES (B) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SHRI.K.P.PRADEEP. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 08/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP.NO.35321/2001 IN OP.NO.21721/2001-J. DISMISSED. 9.1.2008. Sd/- C.N.Ramachandran Nair, Judge. APPENDIX PETITIONER'S EXHIBITS:- P1: Copy of the Assessment Order for the year 1987-88 of Sri.P.U.Jose, Proprietor, Omana Shop, Ernakulam. P2: Copy of the Assessment Order for the year 1988-89 of Sri.P.U.Jose, Proprietor, Omana Shop, Ernakulam. P3: Copy of the Assessment Order for the year 1989-90 of Sri.P.U.Jose, Proprietor, Omana Shop, Ernakulam. P4: Copy of the Assessment Order for the year 1990-91 of Sri.P.U.Jose, Proprietor, Omana Shop, Ernakulam. P5: Copy of the Assessment Order for the year 1991-92 of Sri.P.U.Jose, Proprietor, Omana Shop, Ernakulam. P6: Copy of the Assessment Order for the year 1992-93 of Sri.P.U.Jose, Proprietor, Omana Shop, Ernakulam. P7: Copy of the Assessment Order for the year 1993-94 of Sri.P.U.Jose, Proprietor, Omana Shop, Ernakulam. P8: Copy of the Assessment Order for the year 1994-95 of Sri.P.U.Jose, Proprietor, Omana Shop, Ernakulam. P9: Copy of the Assessment Order for the year 1995-96 of Sri.P.U.Jose, Proprietor, Omana Shop, Ernakulam. P10: Copy of the Assessment Order for the year 1996-97 of Sri.P.U.Jose, Proprietor, Omana Shop, Ernakulam. P11: Copy of the Assessment Order for the year 1997-98 of Sri.P.U.Jose, Proprietor, Omana Shop, Ernakulam. P12: Copy of the assessment order of M/s.Annette International, Ernakulam for the year 1994-95. P13: Copy of the assessment order of M/s.Annette International, Ernakulam for the year 1995-96. -: 2 :- P14: Copy of the assessment order of M/s.Annette International, Ernakulam for the year 1996-97. P15: Copy of the assessment order for 1997-98 dated 28.12.1998 of M/s.Merk Business Corporation, Trichur. P16: Copy of the assessment order of the petitioner for the year 1996-97. P17: Copy of the assessment order of the petitioner for the year 1997-98. P18: Copy of the assessment order of the petitioner for 1998-99 passed by the first respondent. P19: Copy of the notice dtd.11.7.2001 issued to the petitioner by the first respondent. P20: Copy of the clarification dtd.13.6.1995 issued by the Centre for Taxation Studies, Thiruvananthapuram. P21: Copy of the letter dtd.10.11.1999 sent by the 2nd respondent to the Commissioner of Commercial Taxes, Thiruvananthapuram. P22: Copy of the affidavit sworn and signed by Sri.C.V.Lazer Lal. P23: Copy of the affidavit sworn and signed by Sri.C.K.Ratheendran. P24: Copy of the affidavit sworn and signed by Smt.Nimmy Deepak. P25: Copy of the order passed by this Hon'ble Court in CMP.No.58125/2000 in OP.No.34025/2000 dtd.5.12.2000. RESPONDENTS' EXHIBITS:- Nil. ( true copy ) P.S. TO JUDGE. kvs/- C.N. RAMACHANDRAN NAIR, J. -------------------------------------------- O.P. NO. 21721 OF 2001 -------------------------------------------- Dated this the 9th day of January, 2008 JUDGMENT The issue raised in this case with regard to rate of tax is covered against the petitioner vide decision of this Court in TRC Nos. 562 and 563 of 2001. In a similar case this Court held that in view of the Division Bench judgment, petitioner is liable to pay higher rate of tax in terms of the demand. However, since petitioner has filed appeal against earlier judgment of this Court, I feel petitioner should be granted consequential benefits, if the petitioner succeeds in the appeal pending before the Supreme Court without the requirement of filing another appeal against this judgment. O.P. is therefore disposed of leaving freedom to the respondents to proceed for recovery of tax at higher rate. However, if the petitioner produces orders in appeal from the Supreme Court for earlier years, consequential benefit should be granted for the year 1998-99 also which is the year of assessment involved in this case. If the petitioners offers to pay entire amount in instalments, Officer should grant instalment facility to the petitioner. (C.N. RAMACHANDRAN NAIR) Judge 2