IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 2ND JANUARY 2008 / 12TH POUSHA 1929 WP(C).No. 34999 of 2007(N) -------------------------- PETITIONER: -------------- JACOB THOMAS, PROPRIETOR, MULAMOOTTIL TRADING COMPANY, MULAMOOTTIL BUILDING, KOZHENCHERRY 689 641. BY ADV. SRI.M.NARENDRA KUMAR SRI.R.SUDHIR RESPONDENTS: ----------------- 1. STATE OF KERALA, REP. BY SECRETARY(TAXES SECRETARIAT, THIRUVANANTHAPURAM. 2. THE ASSISTANT COMMISSIONER (AUDIT ASSESSMENT), COMMERCIAL TAXES, PATHANAMTHITTA. 3. THE INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAXES, PATHANAMTHITTA. BY GOVERNMENT PLEADER SRI.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/12/2007, THE COURT ON 02/01/2008 DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. =============== W.P.(C) NO. 34999 OF 2007 N ===================== Dated this the 2nd day of January, 2008 J U D G M E N T The prayers sought for in this writ petition are to quash Ext.P6 order and Ext.P7 demand notice. 2. Petitioner is a registered dealer on the rolls of the Commercial Tax Officer, Pathanamthitta. It is stated that for the return period ending March 31, 2006, petitioner had paid excess tax of Rs.1,59,192/- and had carried forward the same to the subsequent return period. It is stated that for April, 2006, the total tax paid by the petitioner was Rs.5,39,035/- while the tax collected on sales was only Rs.4,17,342/-. The excess tax of Rs.1,21,693/- paid by the petitioner for April, 2006 was allowed to be carried forward to May, 2006. For May, 2006 also the tax paid by the petitioner was excess by Rs.6,357/-. 3. Subsequently, petitioner received Ext.P1 notice under WPC 34999/07 :2 : Section 25 of the KVAT Act informing that the excess input tax of Rs.1,59,192.44 carried forward by the petitioner at the end of 2005-06 to April, 2006 was not permissible in terms of Section 11(6) of the KVAT Act. Petitioner thereupon filed application for refund and was informed by Ext.P3 that refund application ought to be addressed to the Assessing Authority. Thereupon, he submitted Ext.P4 application for refund and also filed Ext.P5 objection to Ext.P1 notice. Subsequently, by Ext.P6 his assessment was completed and the petitioner was called upon to pay Rs.1,97,995/- being the tax and Rs.24,912/- being the interest for the belated payment. This was followed by Ext.P7 demand notice and it is in these circumstances, this writ petition has been filed by the petitioner praying for quashing Exts. P6 and P7. 4. As I have already noticed, the only prayer that is sought for by the petitioner is to quash Ext.P6 order of assessment and Ext.P7 demand notice. In my view, if the petitioner is aggrieved by Ext.P6, it is for the petitioner to invoke the appellate remedy provided under Section 55 of the KVAT Act. WPC 34999/07 :3 : True the petitioner has a contention that he is entitled to carry forward the excess input tax paid by him at the end of the last return period of 2005-06. He would contend that although in terms of Section 11(6) and its proviso, where excess input tax carried forward cannot be fully adjusted during the last return period of the year, the excess input tax credited so remaining unadjusted shall be refunded to the dealer, he is entitled to the benefit of Rule 47A, to which Rule 47(5) is made applicable. On this basis, it is contended that where a dealer eligible for refund is liable to pay any tax, the assessing authority shall adjust the amount to be refunded towards tax and the balance remaining alone is liable to be refunded to the dealer. On this basis, petitioner could argue that the excess input tax of March 2006 ought to have been adjusted against his liability in April, 2006. Although this question would also crop up in this case for consideration, that again is a matter which has to be urged by the petitioner before the appellate authority. Having regard to the nature of the contentions urged and the reliefs sought, I am satisfied that the petitioner has not made WPC 34999/07 :4 : out a case for interference in this writ petition. Without prejudice to the contentions raised by the petitioner to be pursued in an appeal to be filed in terms of Section 55 of the KVAT Act, this writ petition is dismissed. ANTONY DOMINIC, JUDGE. Rp