IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 29TH JUNE 2010 / 8TH ASHADHA 1932 WP(C).No. 17827 of 2010(C) -------------------------- PETITIONER: --------------- M/S.P.R.ASSOCIATES, PALLIKKAL COMPLEX, CALICUT ROAD, MANJERI, MALAPPURAM DISTRICT, REPRESENTED BY ITS MANAGING PARTNER, P.RAYINKUTTY. BY ADV. SRI.N.MURALEEDHARAN NAIR SRI.T.G.ABHILASH RESPONDENTS --------------- 1. ASSISTANT COMMISSIONER, SPECIAL CIRCLE, COMMERCIAL TAXES, MALAPPURAM. 2. DEPUTY COMMISSIONER (APPEALS) DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM. BY SR.GOVERNMENT PLEADER ADV. MR. C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C) No. 17827 OF 2010 ......................................................................... Dated this the 29th June, 2010 J U D G M E N T The petitioner is before this Court, challenging the condition imposed vide Ext.P9 passed by the second respondent/appellate authority, whereby the petitioner has been directed to satisfy 40% of the disputed liability and to furnish security for the balance amount, so as to avail the benefit of interim stay during the pendency of appeal. 2. The learned Counsel for the petitioner submits that the order imposing condition is per se wrong and unsustainable, in so far as the case of the petitioner that the petitioner is not liable to pay any tax, has not been properly dealt with by the appellate authority while fixing the condition. 3. The learned Counsel submits that the tax payable has already been satisfied by the supplier and the petitioner is entitled to the benefit of 'input tax'. It is without any regard to W.P.(C) No. 17827 OF 2010 2 this, that the assessment proceedings were finalised as per Exts.P1 and P2, which in turn have been subjected to challenge by filing Exts.P3 and P4 appeals along with Exts.P5 and P6 petitions for stay, leading to Ext.P9 interim order passed by the appellate authority. 4. The learned Counsel further submits that the reasons given by the assessing authority to discard the version putforth by the petitioner, that he is not entitled to have the benefit of the Circular, is quite wrong and misconceived, in so far as the position of law has been made clear by this Court, stating that the dictum is equally applicable to the subsequent years as well. 5. The learned Government Pleader appearing for the respondents submits that the legal position has been declared by this Court as per the decision in M/s. Madras Cements vs. Asst. Commissioner (Audit -Assessment) & others [2010 (18) KTR 214] holding that the said Circular is having application only in respect of the assessment year 2005-06 and as such the petitioner is not correct or justified in seeking for extension of the benefit thereunder. The case projected by the W.P.(C) No. 17827 OF 2010 3 petitioner has been very much appreciated by the appellate authority while passing Ext.P9 and hence imposition of liability to the extent of 40% can in no way be said as arbitrary or illegal and as such no interferece is called for. 6. Considering the rival submissions, the liability, if at all, to be satisfied by the petitioner can only be in respect of value addition or in respect of escaped trade discount, if at all, given in the meanwhile. The issue also appears to be rather a question of law than a disputed question of fact and it can be finalised only on passing final orders in the appeal. In the said circumstances, this Court finds it fit and proper to direct the appellate authority to consider and finalise the appeals in accordance with law, which shall be done as expeditiously as possible at any rate within a period of two months from the date of receipt of a copy of the judgment. The petitioner will continue to have the benefit of the interim stay, on condition that the petitioner satisfies 25% of the tax amount and furnishes security for the balance amount, instead of satisfying 40% as now ordered by the appellate authority within ten days from the W.P.(C) No. 17827 OF 2010 4 date of receipt of a copy of this judgment. Subject to the above modification, the Writ Petition is disposed of. P.R. RAMACHANDRA MENON, JUDGE. lk