IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 2ND NOVEMBER 2010 / 11TH KARTHIKA 1932 WP(C).No. 31659 of 2009(B) -------------------------- PETITIONER(S): --------------- M/S.DLF HOME DEVELOPERS LTD., PDR BHAVAN FORESHORE ROAD, ERNAKULAM, COCHIN-682016 REPRESENTED BY ITS AUTHORISED SIGNATORY, SRI.MATHEW JOSEPH, CHIEF MANAGER, KERALA. BY ADV. SRI.SHAJI THOMAS PORKKATTIL SRI.BINU PAUL SRI.T.V.VINU RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, COMMERCIAL TAXES, GOVT. OF KERALA, TRIVANDRUM, KERALA. 2. COMMISSIONER OF COMMERCIAL TAXES, DEPARTMENT OF COMMERCIAL TAXES, TRIVANDRUM, KERALA. 3. ASSISTANT COMMISSIONER (WORKS CONTRACT) O/O.THE DEPUTY COMMISSIONER (WORKS CONTRACT) DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM, KERALA. 4. DEPUTY COMMISSIONER (APPEALS) DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM, KERALA. BY GOVERNMENT PLEADER SRI.V.K.SHAMSUDHEEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J --------------------------------------- W.P(C) No.31659 of 2009-B ---------------------------------------- Dated this the 2nd day of November, 2010. J U D G M E N T Challenge in this writ petition is against Ext.P9 order through which the 3rd respondent insisted for payment of additional security to the tune of Rs.2,33,71,218/-, under Section 17(1) of the Kerala Value Added Tax Act. The impugned order was issued pursuant to Ext.P8 judgment wherein the 3rd respondent was directed to consider the requests of the petitioner for issuing required number of Form 15 declarations. The reasons for insistence for payment of additional security mentioned in Ext.P9 is that huge amount of tax, interest and penalty is due from the petitioner and that the petitioner is in arrears for payment of an amount of Rs.1,55,80,812/-. 2. Learned counsel for the petitioner submitted that the statement contained in Ext.P9 to the effect that the petitioner is in arrears of tax amount and penalty is not true and correct. It is stated that with respect to assessments W.P(C) No.31659 of 2009-B 2 completed for the years 2007-08 and 2008-09, appeals filed by the petitioner were allowed by the Deputy Commissioner and the demands were set aside. It is stated that the matter was remitted back to the assessing authority for issuing fresh orders. So also with respect to the penalty imposed, the petitioner had approached this Court by filing W.P.(C) No.30038 of 2009 and through judgment dated 19.11.2009, the order imposing penalty was quashed observing that there was no default in payment of tax on the part of the petitioner, in view of Ext.P1 judgment. Therefore, contentions of the petitioner is that there is no arrears of tax or penalty outstanding payment and the insistence for furnishing additional security on that basis is totally unsustainable. 3. Learned Government Pleader appearing on behalf of the respondents submitted that with respect to the years 2007-08 and 2008-09 the matter is now pending consideration before the assessing authority, pursuant to remand made by the first appellate authority and the W.P(C) No.31659 of 2009-B 3 liability of the petitioner will be fixed only on finalizing such assessment. It is also mentioned that the petitioner himself had taken up the matter before the Appellate Tribunal and second appeals are pending. Position being so, contention of the petitioner that there is no liability is disputed by the respondent. It is further stated that inspite of the fact that the petitioner is engaged in works contract of huge turn over, they are not paying tax raising untenable contentions that the turn over is not exigible for tax since they are executing the work by themselves and only effecting sale of immovable property. 4. Considering the rival submissions, I am of the opinion that the matter needs re-consideration at the hands of the 3rd respondent. It is made clear that, the reason mentioned in Ext.P9 for insisting payment of additional security, is not in existence now because of setting aside the assessment and penalty order. Under such circumstances it is only just and proper to direct the 3rd respondent to reconsider the matter and to take a fresh decision. It is W.P(C) No.31659 of 2009-B 4 brought to my notice that the petitioner is put to great difficulty due to non issuance of sufficient number of Form 15 declarations. It is also noticed that this Court had issued an interim order directing the 3rd respondent to issue Form 15 declarations for the use of the petitioner during pendency of the writ petition. 5. In the result, the writ petition is disposed of quashing Ext.P9 and directing the third respondent to consider the matter afresh. A decision on the basis of the request of the petitioner for issuance of adequate number of Form 15 declarations shall be taken as early as possible, after affording an opportunity of hearing to the petitioner, at any rate within a period of two weeks from the date of receipt of a copy of this judgment. 6. It is submitted that the petitioner is in urgent need of Form 15 declarations for effecting transport of cement with respect to works which need be completed on an urgent basis. Considering the facts as stated above, pending disposal of the matter, the 3rd respondent is W.P(C) No.31659 of 2009-B 5 directed to issue 100 numbers of Form 15 declarations within three days of receipt of a copy of this judgment. C.K.ABDUL REHIM JUDGE ab