IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 8TH SEPTEMBER 2009 / 17TH BHADRA 1931 WP(C).No. 25370 of 2009(M) -------------------------- PETITIONER: ------------------ HINDUSTAN PETROLEUM CORPN LTD, COCHIN REGIONAL OFFICE, KARSHAKA ROAD, ERNAKULAM REP.BY ITS MANAGER (FIANCE) PRAKASAN I.A. BY ADV. SRI.K.I.MAYANKUTTY MATHER SRI.K.S.SAJEEV KUMAR RESPONDENTS: --------------- 1. ASSISTANT COMMISSIONER OF COMMERCIAL TAXES (ASSESSMENT I) SPECIAL CIR.II, COMMERCIAL TAXES, ERNAKULAM. 2. DEPUTY COMMISSIONER (APPEALS) COMMERCIAL TAXES, ERNAKULAM. 3. INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAXES, ERNAKULAM. BY GOVERNMENT PLEADER SRI. C.K.GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: app/- C.K.ABDUL REHIM, J - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.25370 of 2009 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of September, 2009 J U D G M E N T 1. Against Ext.P1 series penalty orders, the petitioner had filed Ext.P3, P4 and P5 appeals. So also against Ext.P2 series assessment orders, the petitioner had filed Ext.P6, P7 and P8 appeals. Petitioner had also filed stay petitions as evidenced by Ext.P3(a), P4(a), P5(a), P6(a), P7(a) and P8(a), along with the above appeals. The appeals and stay applications are pending consideration before the second respondent. The assessments and penalty orders pertains to the years 2005-06, 2006-07 and 2007-08. When the original assessments pertaining to these years were completed input tax credits as claimed by the petitioner was allowed. But it is subsequently found that the input tax claim was in excess of the out put tax paid, because the W.P.(C) No.25370 of 2009 2 selling rate of the petitioner was subsidiced. According to the petitioner, even before the revised assessment when the petitioner was issued with proposal for imposing penalty taking note of the mistake the petitioner had remitted the entire difference amount. But the assessing authority had credited those those payment against the interest due on the excess input tax credit. Further revised assessment was issued and penalty was imposed alleging the offence of false claim for input tax credit. 2. Contention of the petitioner is that there is no willful violation of any of the provisions contained in the Act nor there was any malafides on the part of the petitioner in claiming the excess input tax credit. It was only because of a genuine mistake that the input tax credit was claimed in excess of the output tax, and such claim was originally permitted by the authority on a mistaken basis. 3. The petitioner has now been issued with notices W.P.(C) No.25370 of 2009 3 evidenced by Ext.P9 series for realisation of the amount covered under Ext.P2 series assessment orders. It is also apprehended that recovery steps will be initiated for realisation of the amount of penalty. In the above context, the petitioner is pressing for grant of stay of collection of the amounts till disposal of the appeals by the second respondent. 4. Having considered the fact that appeals as well as stay petitions are pending consideration before the statutory appellate authority, it is only just and proper to direct that authority to consider and pass orders on the appeals as well as the stay applications taking into account all the relevant contentions raised by the petitioner. Learned counsel for the petitioner had pointed out a decision of the Hon'ble Supreme Court in Bharat petroleum Corp. Ltd. Vs. Commissioner of Sales Tax and others 2008 (17) VST 162(SC) wherein the Hon'ble Supreme Court in a W.P.(C) No.25370 of 2009 4 identical situation had granted absolute stay with direction to the appellate authority dispose of the appeal. The relevant provisions of the said judgment is extracted below:- Normally, this court does not interfere in interim matters particularly when the matter concerns levy of tax. However, this is a peculiar case for two reasons, i.e., BPCL Ltd; is a public sector company in a priority sector which is obliged to sell kerosene via PDS route. The demand is for Rs.1.34 crores (approx.) and, in the circumstances, we are of the view that to call upon BPCL at this stage to deposit a huge amount of Rs.1.34 crores (approx.) would have a serious effect on the PDS sales. On the other hand, we are satisfied that BPCL is a substantial company. It is in a sound financial position and it can discharge its liability at a later date, if need be. In the circumstances, we are of the view that ends of justice would be met if the Assistant Commissioner of Sales Tax, Cuttack, is directed to hear and dispose of the first appeal pending before him within a period of three months from today. 5. Under the above circumstances the writ petition is disposed of directing the second respondent to consider and pass orders on Exts.P3(a), P4(a), P5(a), P6(a), P7(a) and P8(a) applications for stay, after affording an opportunity of hearing to the petitioner taking note of the factual matrix of W.P.(C) No.25370 of 2009 5 the case and also taking note of the decision of the Hon'ble Supreme Court (cite supra), as early as possible, at any rate within a period of one month from the date of receipt of a copy of this judgment. Till orders are passed on the stay petitions as directed above, all further steps for realisation of the amount covered under the impugned assessment orders and orders of penalty shall be kept in abeyance. C.K.ABDUL REHIM, JUDGE. app/-