IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 29TH SEPTEMBER 2009 / 7TH ASWINA 1931 WP(C).No. 367 of 2007(R) ------------------------ PETITIONER(S): --------------- C.J. ANTO, PROPRIETOR, CEE JEE LUBRICANTS, INDUSTRIAL DEVELOPMENT AREA, EDAYAR, BINANIPURAM P.O., ERNAKULAM DISTRICT. BY ADV. SRI.V.P.SUKUMAR ADV. KURYAN THOMAS RESPONDENT(S): --------------- 1. THE ASSISTANT COMMISSIONER (ASSESSMENT), SPECIAL CIRCLE, COMMERCIAL TAXES, THRISSUR. 2. THE DEPUTY COMMISSIONER (APPEALS) COMMERCIAL TAXES, ERNAKULAM. 3. THE INSPECTING ASSISTNT COMMISSIONER COMCMERCIAL TAXES, MATTANCHERY. BY SPL. GOVT. PLEADER, SHRI. PRADEEP THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P. (C) NO: 367 OF 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th Day of September, 2009. JUDGMENT Exts. P1 to P10 are the assessment orders against the petitioner, which shows that best judgment assessments were completed under Section 22(3) of the KVAT Act. The petitioner submits that against these assessment orders Exts. P11 to P20 appeals were filed along with Ext.P21 to P30 applications seeking stay of Exts.P1 to P10 orders. By Ext.P31 notice, the appellate Authority returned the defective appeals on the ground that the entire tax assessed under section 22(3) were due and not remitted. Subsequently, Exts. P32 to 41, Revenue Recovery notices were issued to recover the amount due from the petitioner under Exts.P1 to P10. It was thereupon that this writ petition is filed, seeking a declaration that the Second W.P.(C). NO: 367 OF 2007 :2: proviso to Section 55(1) of the KVAT Act to the extent that it provides that no appeal against the assessment completed under Section 22(3) shall be entertained unless the entire tax is paid is unreasonable, discriminatory and unconstitutional. The petitioner also seeks a prayer directing to consider the appeals and to quash the Revenue Recovery notices. 2. Second proviso to Section 55(I) provides that unless the entire tax assessed under Section 22(3) is remitted, the appeal shall not be entertained. Therefore, unless the aforesaid provision is found to be unconstitutional, the order in Ext.P31 order, returning the appeal, cannot be faulted. A similar provision requiring remittance of the entire tax due under Section 17(D) of KGST Act, has been upheld by this court in the judgment in Alinkunhi Haji V.C. & Ors Vs. State of Kerala & Ors. (2008(16) KTR 206 (Ker.)). Therefore having regard to the above, there is no merit in this challenge against the said provision. W.P.(C). NO: 367 OF 2007 :3: 3. Further, at the relevant point of time, Section 22 contained Sub Section 7 which also required that notwithstanding any thing contained in any other provision in the Act, no appeal shall lie against the assessment completed under Section 22(3), unless the dealer has paid the entire tax assessed. This provision is not under challenge. Therefore, even if the condition in Section 55 is ignored, in the absence of any challenge to Section 22(7), the petitioner cannot get any effective remedy. 4. In the light of the above, neither Ext.P31 nor Exts.P32 to 41 Revenue Recovery Notices can be held to be illegal. The Writ Petition therefore fails and is dismissed accordingly. ANTONY DOMINIC, JUDGE. dl/