IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH MONDAY, THE 23RD JUNE 2008 / 2ND ASHADHA 1930 WP(C).No. 18728 of 2008(D) -------------------------- PETITIONER: ----------------- SIMON ARACKAL .A.J. PROPRIETOR, CARMEL AGENCIES, 35/1405 A M.K.K.NAIR ROAD, PALARIVATTOM ,KOCHI 682 025 BY ADV. SRI.V.P.SUKUMAR SRI.V.DEVANANDA NARASIMHAM RESPONDENTS: ---------------------- 1. THE COMMERCIAL TAX OFFICER (AA) (AUDIT ASSESSMENT) IIND CIRCLE, KALAMASSERY AT PALARIVATTOM. 2. THE DEPUTY COMMISSIONER (APPEALS) COMMERCIAL TAXES, ERNAKULAM. 3. THE INSPECTING ASSISTANT COMMISSIONER COMMERCIAL TAXES, ERNAKULAM. BY GOVT. PLEADER SRI. C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - WP.(C) No.18728 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of June, 2008 JUDGMENT Case of the petitioner in brief is as follows: Gypsum Board is an unclassified item under the Kerala General Sales Tax Act. Under Entry 156 of the Ist schedule the rate of tax is 8%. Assessment for the year 2004-2005 came to be completed levying tax at 8%. The Commissioner of Commercial Taxes by Ext.P3 order dated 28.1.2005 held that Gypsum Board is taxable at 12% under Entry 11 of the Ist Schedule. On the basis of the said clarification, Ext.P4 notice was issued under Section 19 of the KGST Act so that tax can be levied at 12%. Though Ext.P6 reply was given pointing out that under Section 59A (5) the clarification cannot have retrospective effect as held in the decision reported in The Deputy Commissioner of Sales Tax (Law) v. A.V.M. Film Agencies ((1992) 1 KTR 23 (Ker)), Ext.P7 assessment order came to be passed. Petitioner preferred appeal before the Sales Tax Appellate Tribunal and the Tribunal returned the appeal to the petitioner by Ext.P8 order. Petitioner was directed to file appeal in the proper forum. Petitioner preferred Ext.P9 appeal, Ext.P10 application for condonation of delay and Ext.P11 stay petition. In the meantime by Ext.P12 there is a recovery pending against the petitioner. WPC.18728/2008. 2 2. Petitioner seeks to quash Ext.P7 and also seeks a direction to consider and take a decision on Ext.P9 appeal and to keep in abeyance further proceedings pursuant to Ext.P12 notice. 3. I heard learned Government Pleader also. 4. In view of the fact that the petitioner has already approached the appellate authority, I do not think it necessary to consider the legality of Ext.P7. However, I feel that a decision should be taken on Ext.P10 application for condonation of delay and Ext.P11 stay petition. Accordingly, the writ petition is disposed of as follows: There will be a direction to the second respondent to consider and take a decision on Ext.P10 within a period of one week from the date of receipt of a copy of this judgment and if the delay petition is condoned, the second respondent will consider and take a decision on Ext.P11 in accordance with law within period of two weeks from the date on which the delay is condoned. Recovery proceedings will be kept in abeyance for a period of one month from today. It is open to the petitioner to rely on Ext.P5 judgment before the appellate authority. (K.M. JOSEPH, JUDGE) sb