IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 4TH NOVEMBER 2010 / 13TH KARTHIKA 1932 WP(C).No. 32734 of 2010(N) -------------------------- PETITIONER(S): --------------- S.NAJEEM MUSALIAR,NAJEEM CASHEW INDUSTRIES,KARIKODE, KOLLAM. BY ADV. SRI.E.D.GEORGE RESPONDENT(S): --------------- 1. ASST.COMMISSIONER III, COMMERCIAL TAXES,SPECIAL CIRCLE, KOLLAM. 2. THE DEPUTY COMMISSIONER OF TAX,KOLLAM. 3. THE APPELLATE TRIBUNAL, THIRUVANANTHAPURAM. 4. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. BY GOVT. PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J --------------------------------------- W.P(C) No.32734 of 2010-N ---------------------------------------- Dated this the 4th day of November, 2010. J U D G M E N T Aggrieved by Ext.P4 assessment completed for the month of April 2009 under Section 22(3) of the Kerala Value Added Tax Act (KVAT Act), the petitioner had approached the first appellate authority. While disposing the appeal certain relief was granted to the petitioner and the matter was remitted back to the first respondent assessing authority to pass modified orders. Ext.P5 is the order of the first appellate authority. Ext.P6 is the modified assessment issued by the first respondent. Against Ext.P5 the petitioner had filed second appeal before the State Appellate Tribunal, as evidenced from Ext.P7. It is submitted that the second appeal is pending consideration and disposal before the Tribunal. 2. Contention of the petitioner is that the claim for exemption based on high Sea Sale for an amount of Rs.1,54,41,548/- and Export Sale amounting to W.P(C) No.32734 of 2010-N 2 Rs.1,51,87,500/- supported by all necessary documents, were not allowed. According to the petitioner, the original documents relating to above said transactions which were produced before the assessing authority, were not sent for consideration of the appellate authority and inspite of production of copies of such documents the first appellate authority has not considered such deductions for want of the originals. Apprehension of the petitioner is that such documents will not be produced by the 1st respondent before the Appellate Tribunal also. Under such circumstances the petitioner is seeking direction to the 3rd respondent to consider such documents and to pass appropriate orders. 3. It is evident that the statutory appeal is now pending disposal before the State Appellate Tribunal. Correctness of the assessment is in dispute before that authority and the petitioner has to pursue remedy by producing all documents in support of his claim. If the petitioner had produced such documents before the W.P(C) No.32734 of 2010-N 3 assessing authority and if the authority is not producing such records before the Tribunal, it is left open to the petitioner to seek appropriate relief from the Tribunal by calling for such records from the custody of the assessing authority. Instead of resorting such remedy, the writ petition is filed seeking to quash assessment order, could not be entertained. Under the above circumstances,the writ petition is dismissed with liberty to the petitioner to take appropriate steps before the Appellate Tribunal for production of records which are in the custody of the first respondent. Sd/- C.K.ABDUL REHIM JUDGE //True Copy// P.A to Judge ab W.P(C) No.32734 of 2010-N 4