IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 3RD AUGUST 2011 / 12TH SRAVANA 1933 WP(C).No. 31500 of 2006(Y) ------------------------------------- PETITIONER: M/S. MEERA MARBLES, MADAPLATHURUTH, MOOTHAKUNNAM, REPRESENTED BY ITS MANAGING PARTNER, K.J.ROBIN. BY ADV. SMT.S.K.DEVI SRI.M.RAJ MOHAN SRI.SANTHOSH P.ABRAHAM SRI.K.P.PRADEEP (PAYYANNUR) SRI.FRANKUR D.JAYAN SRI.SHANMUGHAM D. JAYAN SMT.P.K.MAYA DEVI RESPONDENT(S): 1. THE COMMERCIAL TAX OFFICER, DEPT. OF COMMERCIAL TAXES, N.PARUR. 2. STATE OF KERALA, REP. BY ITS FINANCE SECRETARY, SECRETARIAT, TRIVANDRUM. BY GOVT. PLEADER SRI.V.K.SHAMSUDEEN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN WPC 31500/06 PETITIONER'S EXHIBITS: EXT. P1TRUE COPY OF ASSESSMENT ORDER NO.24173044/2004-05 DT. 4.2.06 EXT. P2 TRUE COPY OF NOTICE NO.24173044/2005-06 DT. 20.6.05 EXT. P3 TRUE COPY OF REPLY DT. 6.10.06 EXT. P4 TRUE COPY OF ORDER NO.32150919284 DT. 15.10.1986 /TRUE COPY/ P.R.Ramachandra Menon, J. ------------------------------------------- W.P.(C)No.31500 of 2006 Y ------------------------------------------- Dated this the 3rd day of August, 2011 JUDGMENT Petitioner, who is an assessee under the rolls of the first respondent, filed the return for the assessment year 2004-05. By virtue of Exhibit P1 order passed by the first respondent, there is an excess remittance and the petitioner is entitled to have refund of `.11,95,569/-. 2. In the meanwhile, the taxing statute did undergo a substantial change whereby, the Kerala General Sales Tax Act was replaced by the Kerala Value Added Tax Act with effect from 1.4.2005. The petitioner, being eligible to have refund of the excess amount as provided under Section 44 of the KGST Act, filed an application to set off/adjust the said amount in respect of the future liability under the KVAT Act. The application preferred by the petitioner in this regard was rejected stating that it was belated and not in proper form. The case of the petitioner is that Section 13(3) of the KVAT Act enables the first respondent to have the excess amount adjusted towards the dues from the petitioner and as such, the demand in respect of the subsequent years is not correct or proper. It is also the case of the petitioner that if, for any reason, the amount is not liable to be set off, WPC 31500/06 2 the same is to be refunded to the petitioner in terms of Section 44(1) and (4) of the KGST Act. 3. Heard the learned Government Pleader as well, who submits that the claim for set off has been rejected for valid grounds, as the application preferred by the petitioner was not in proper form and much belated as well. With regard to the claim for refund, the learned Government Pleader submits that the application preferred by the petitioner vide Exhibit P3 is not a proper application and if the petitioner submits a proper application, same will be considered and appropriate orders will be passed in accordance with law. 4. In such circumstances, the petitioner is at liberty to file an application claiming refund of the excess amount flowing from Exhibit P1 within two weeks from the date of receipt of a copy of this judgment, on which event, the matter shall be considered and appropriate orders shall be passed by the first respondent within two months thereafter. The amount due to the petitioner by way of refund shall be disbursed in terms of the statutory prescription within one month thereafter. The writ petition is disposed of a above. (P.R.Ramachandra Menon, Judge) tkv