IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 19TH NOVEMBER 2009 / 28TH KARTHIKA 1931 WP(C).No. 33171 of 2009(N) -------------------------- PETITIONER(S): --------------- JYOTHY LABORATORIES LIMITED, KADANASSERRY.P.O, THRISSUR, REPRESENTED BY ITS SENIOR OFFICER, ACCOUNTS-T.V.TILAKAN BY ADV. SRI.P.RAGHUNATHAN SRI.PREMJIT NAGENDRAN RESPONDENT(S): --------------- 1. ASSISTANT COMMISSIONER (ASSESSMENT), COMMERCIAL TAXES, SPECIAL CIRCLE, THRISSUR. 2. THE INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAXES, THRISSUR. 3. DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES, ERNAKULAM. GOVERNMENT PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J. ------------------------------ W.P.(C).No.33171 OF 2009 ------------------------------ Dated this the 19th day of November, 2009 J U D G M E N T ---------------------- 1. Against Ext.P1 to P4 orders of assessment pertaining to the period from April 2009 to July 2009, the petitioner had preferred Ext.P5 to P8 appeals before the 3rd respondent. They have also filed stay applications as evidenced by Ext.P9 to P12, along with the appeals. Grievance of the petitioner is that without taking note of pendency of the appeals, recovery steps have now been initiated on issuing Ext.P13 and P14 notices. Therefore the petitioner is seeking direction for early disposal of the appeals, and till then to keep in abeyance the recovery steps. 2. The petitioner is challenging orders of assessments on the basis of dispute pertaining to rate of tax applicable to their products, “Ujala Supreme” and “Ujala Stiff and Shine”. According to the petitioner the products are falling under Entry 155(8) (d) and Entry No.118 of List A of the Third Schedule to the Kerala Value Added Tax Act, 2003 (KVAT Act) and the rate of tax applicable is 4%. But according to the assessing authority the product in question will fall only under the residual Entry of 103 of SRO. 82/2006 in the Schedule to the Act and therefore W.P.(C).33171/09-N 2 taxable at 12.5%. With respect to assessment for the previous periods, the 3rd respondent Tribunal, as per order in T.A.No:272 & 314 of 2008 dt.23.12.2008, held that the products are taxable only at 4%. A tax revision case filed by the State against the said order is pending disposal before this court. At the same time on the basis of clarification sought for, an order under Section 94 was issued by the Commissioner of Commercial Taxes, holding that the product in question is taxable at 12.5%. It is submitted that said order of the Commissioner was upheld by this court and the matter is now pending consideration and disposal before the Hon'ble Supreme Court. However it is submitted that either in the Tax Revision Case pending before this court or in the SLP pending before the Hon'ble Supreme Court, there is no interim orders. Therefore, according to the petitioner, the finding in the order of the 3rd respondent Tribunal with respect to the previous periods is holding the field at present. 3. Under the above circumstances the petitioner is seeking absolute stay of realisation of the amounts covered by the impugned assessment, till the matter is finally decided. Having considered the fact that the statutory appeal is pending before the 3rd respondent and having considered the fact that the dispute pending in various proceedings before this court and before the Hon'ble Supreme Court, I am of the opinion that the W.P.(C).33171/09-N 3 writ petition can be disposed of directing the 3rd respondent to consider and dispose of the appeals itself at the earliest, and directing the recovery steps to be kept in abeyance in terms of conditions to be imposed. 4. In the result the writ petition is disposed of directing the 3rd respondent to consider and pass orders on Ext.P5 to P8 appeals, after affording an opportunity of hearing to the petitioner, as early as possible, at any rate within a period of two months from the date of receipt of a copy of this judgment. 5. The respondents are directed to keep in abeyance all further steps for realisation of the amounts covered under Ext.P1 to P4 which now initiated pursuant to Ext.P13 and P14, on condition of the petitioner making payment of 1/3rd of the amount in demand within a period of one month from today, and on furnishing security for the balance amount. C.K.ABDUL REHIM, JUDGE. okb