IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 15TH DECEMBER 2009 / 24TH AGRAHAYANA 1931 WP(C).No. 36033 of 2009(Y) -------------------------- PETITIONER(S): --------------- T.A.UNNIKRISHNAN, M/S.SIGMA AGENCIES, SOUTH ARYAD, ALAPPUZHA. BY ADV. SRI.PREMJIT NAGENDRAN RESPONDENT(S): --------------- 1. ASSISTANT COMMISSIONER, SPECIAL CIRCLE, ALAPPUZHA. 2. DEPUTY COMMISSIONER (APPEALS), KOLLAM. 3. INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAXES, ALAPPUZHA. GOVERNMENT PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J. ------------------------------ W.P.(C).No.36033 OF 2009 ------------------------------ Dated this the 15th day of December, 2009 J U D G M E N T ---------------------- 1. The petitioner is a dealer in “Ujala Supreme” and “Ujala Stiff & Shine” which they are purchasing within State, on payment of tax at 4%. With respect to the years 2006-07, 2008-09 and for the months of April and May 2009, assessments were completed imposing tax liability at 12.5%, rejecting returns filed by the petitioner. Ext.P1 to P4 are the orders of assessment. Petitioner had preferred Ext.P5 to P8 appeals before the 2nd respondent accompanied by stay petitions as evidenced from Ext.P9 to P12. Without taking note of pendency of the appeals steps for recovery of amounts covered under the assessments have now been initiated pursuant to Ext.P13 and P14 notices. Hence this writ petition is filed challenging the recovery steps. 2. The main dispute with respect to the assessments relates to the rate of tax applicable to the products dealt with by the petitioner. According to the petitioner the product will fall under Entry 155(8) (d) and Entry 118 of List A of the 3rd W.P.(C).36033/09-Y 2 schedule of the KVAT Act and the rate of tax is 4%. But according to the respondents the product will fall only under residuary entry 103 of SRO. 82/2006 and therefore taxable at 12.5%. The appellate Tribunal as per order in T.A.No:272 and 314 of 2008, dt.23.12.2008, held that the products are taxable only at 4%. A tax revision case filed by the State against the said decision is pending disposal before this court. At the same time the Commissioner of Commercial Taxes had issued clarification under Section 94 of the KVAT Act to the effect that the product is taxable at 12.5%. Challenge against the clarification issued by the Commissioner was negatived by a Division Bench of this court in the judgment in OTA.9/07. But that Judgment is now pending in challenge before the Hon'ble Supreme Court, in an SLP filed by the petitioner therein. 3. It is submitted by the petitioner that there is no stay granted by the Hon'ble Supreme Court in the SLP pending as well as there is no stay order issued by this court in the tax revision case filed against order of the Tribunal. Therefore, according to the petitioner, the order issued by the appellate Tribunal is holding the field, at present. On the other hand learned Government Pleader contended that since the clarification issued under Section 94 was already upheld by a W.P.(C).36033/09-Y 3 Division Bench of this court, the dictum laid down therein is governing the field. 4. On an active consideration of the rival contentions, I am of the opinion that the dispute with respect to rate of tax still remains unsettled, pending consideration in various litigations. Eventhough a Division Bench of this court upheld the view adopted in the clarification order, the same is pending in challenge in SLP before the Hon'ble Supreme Court. At the same time the decision of the appellate Tribunal taking a contrary view is also under challenge in the tax revision case. 5. However, without arriving any conclusion regarding dispute relating to rate of tax, I am of the opinion that the appeals pending before the 2nd respondent can be directed to be disposed of, keeping in abeyance realisation of tax amount due, on insisting condition for part payment. 6. Under the above circumstances the writ petition is disposed of directing the 2nd respondent to consider and pass orders on Ext.P5 to P8 appeals, as early as possible, at any rate within a period of two months from the date of receipt of a copy of this judgment. 7. The respondents are restrained from proceeding with recovery of the amounts covered under Ext.P1 to Ext.P4, till the W.P.(C).36033/09-Y 4 disposal of the appeals, on condition of the petitioner remitting 1/3rd of the amount of tax in dispute, within six weeks from today and on furnishing security for the balance amount. C.K.ABDUL REHIM, JUDGE. okb