IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 15TH JANUARY 2009 / 25TH POUSHA 1930 WP(C).No. 491 of 2009(H) ----------------------------------- PETITIONER: ------------------- BEEPATH CASTINGS (P) LTD., KANJIKODE, NIDA, PALAKKAD, REP. BY ITS MANAGING DIRECTOR. BY ADVS. SRI.JOHN JOSEPH VETTIKAD, SRI.C.JOSEPH JOHNY. RESPONDENTS: ----------------------- 1. ASSISTANT COMMISSIONER (KVAT), SPECIAL CIRCLE, COMMERCIAL TAXES, PALAKKAD. 2. ASSISTANT COMMISSIONER (KVAT AUDIT ASSESSMENT), COMMERCIAL TAXES, PALAKKAD. 3. DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES, ERNAKULAM. R1 TO R3 BY GOVT. PLEADER SRI. K.P. PRADEEP. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/01/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.491 of 2009-H = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 15th day of January, 2009. JUDGMENT The petitioner challenges Ext.P6 notice issued calling for attendance and tendering evidence by way of documents, books of accounts etc. for an enquiry under the KVAT Act. That is issued in connection with an audit assessment stated to have been initiated on the strength of penalty proceedings, that led to Ext.P1 appeal before the competent authority. Against a conditional order imposed while granting stay pending Ext.P1 appeal, the petitioner moved this Court and obtained the judgment in WP(C).20968/2008. The Division Bench refused to interfere with that judgment and issued Ext.P4 enlarging the time to pay the amounts and granting an opportunity to the petitioner to file an application for early posting of Ext.P1 appeal after depositing the amounts covered by that judgment. Now, it is WP(C)491/2009 -: 2 :- shown that petitioner had filed an application for early posting (Ext.P9) supported by Ext.P10 remittance. It is submitted by the learned Government Pleader that Ext.P1 appeal is not defective and is pending consideration. The impugned Ext.P6 is not one that is liable to be quashed on ground of any jurisdictional error since it is issued on the premise of the penalty proceedings, which is however pending consideration in Ext.P1 appeal. The plea pointedly projected on behalf of the petitioner is that if the audit assessment proceedings are concluded before a final decision is rendered on the statutory appeal Ext.P1 against the penalty order, that may prejudice the audit assessment proceedings. The enquiry and steps taken for audit assessment are only at their primitive stage as can be seen from Ext.P6. Following the direction under (iii) in Ext.P4 judgment, the petitioner's application for consideration of Ext.P1 appeal needs to be adverted to and decided WP(C)491/2009 -: 3 :- upon by the authority before whom Ext.P1 appeal is pending. That cannot be delayed. Pending that, the petitioner would produce accounts and documents pursuant to Ext.P6 notice. The proceedings of hearing, production of records etc. in connection with the enquiry and audit could continue following Ext.P6. However, the audit assessment proceedings shall not be concluded by issuing final orders in such proceedings before the issuance of final orders on Ext.P1 appeal. The audit assessment proceedings will be concluded only after adverting to and considering any decision that may be rendered on Ext.P1 appeal. It is so directed. The petitioner will produce a copy of this judgment before the authority before whom Ext.P1 appeal is pending and also before the authority who has issued Ext.P6 notice. The writ petition ordered is accordingly. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/160109