IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN FRIDAY, THE 23RD DAY OF DECEMBER 2011/2ND POUSHA 1933 WA.No. 1976 of 2011 ( ) ------------------------------ AGAINST THE JUDGMENT IN WPC.32212/2011 DATED 08-12-2011 ------------ APPELLANT/PETITIONER ------------------------------------ ASSOCIATED TRADE LINKS, PALACE ROAD, ALUVA, ERNAKULAM REPRESENTED BY ITS PROPRIETOR, K.A. ABDUL KHADER, KAROTHUKUZHY HOUSE, HP 25, KKP NAGAR, U.C. COLLEGE(PO) VELIYATHUNADU, ERNAKULAM DISTRICT - 683 102 BY ADV.SRI.SHAJI CHIRAYATH SMT.JIJI M. VARKEY SRI.M.M.SHAJAHAN RESPONDENTS/RESPONDENTS: -------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY FINANCE SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. ASISTANT COMMISSIONER(ASSESSMENT) COMMERCIAL TAXES, SPECIAL CIRCLE, MATTANCHERRY, AT ALUVA ERNAKULAM. R1 AND R2 BY GOVERNMENT PLEADER SRI. BOBY JOHN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23-12-2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jma C.N. RAMACHANDRAN NAIR, & K. VINOD CHANDRAN, JJ ---------------------------------------------------- W.A No. 1976 of 2011 ---------------------------------------------------- Dated this the 23rd day of December, 2011 J U D G M E N T C.N. Ramachandran Nair , J Appellant challenges assessment in this Court for the simple reason that tax paid is not fully given credit. Learned Single Judge recorded submission from the Government Pleader that the payment received as per Government records are seen credited in the assessment order. In view of the submission made by the Government Pleader the learned Single Judge held that the dispute if at all exists between the parties should be settled in appeal. Hence leaving freedom to file appeal to the appellant, writ petition was closed, against which this writ appeal is filed before us. 2. We agree with the counsel for the appellant that short credit of tax is not a dispute in assessment either with regard to turnover or with regard to rate of tax and so much so, there is no need to file appeal in the matter. Senior Government Pleader also does not raise any dispute on this issue inasmuch as, according to him assessment could be W.A No.1976 of 2011 : 2 : rectified if assessee produces proof of the payment of tax in excess of the amount credited in the accounts. The appellant's counsel pointed out that payments were made through the cheques of Bank of Baroda and they are not co- operating with the appellant as account is NPA and so much so, appellant will not be able to produce evidence. We do not think the Bank can decline a certificate about the details of the cheques issued by the appellant during the year, towards the payment of tax, and whether the cheques issued were honoured by debiting appellant's account and by making payment to the treasury through SBT. The situation is same if the Bank had issued any Demand Draft in favour of the Assessing Officer, also towards the payment of tax at appellant's request. We do not think we should drag the Bank to this Court for instructing them to verify details and issue a certificate to the appellant for them to produce before the Assessing Officer for verification and for giving credit of actual amount of tax paid. Accordingly there will be a direction to the Manager, Bank of Baroda, Aluva Branch to verify details being furnished by the appellant and issue certificate to the appellant after verifying the accounts giving details of payment of tax made by the appellant through the W.A No.1976 of 2011 : 3 : said Bank. It is for the appellant to produce the certificate of the bank and furnish details of the cheques and Demand Drafts given to the department before the Assessing Officer to verify with his records and also with the Treasury as well and give credit for the payments actually made. The Assessing Officer is directed to rectify the assessment for the year 1997- 1998 giving credit for actual payment of tax after verification as directed above within one month from the date of production of the particulars by the appellant as above. 3. Since the appellant has furnished details of cheques said to have been submitted to the department, we defer the recovery proceedings by two months from now. Recovery thereafter will continue for the balance due based on fresh rectification orders issued by the Assessing Officer. Writ appeal is allowed modifying the judgment of the learned Single Judge as above. Sd/- C.N. RAMACHANDRAN NAIR (Judge) Sd/- K. VINOD CHANDRAN (Judge) jma //true copy// P.A to Judge