IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 21ST MAY 2009 / 31ST VAISAKHA 1931 OP.No. 27668 of 2001(R) ---------------------------------- PETITIONER(S): ----------------------- A& CO., REPRESENTED BY ITS AREA MANAGER, 36/2247 SANKOORIKAL BUILDING, OPP. KALOOR BUS STAND, KADAVANTHARA NEW ROAD, KOCHI-17. BY ADV. MR.ANIL SIVARAMAN RESPONDENT(S): ------------------------- 1. STATE OF KERALA REPRESENTD BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. COMMISSIONER, COMMERCIAL TAXES, TRIVANDRUM. 3. DEPUTY COMMISSIONER, COMMERCIAL TAXES, ERNAKULAM. 4. SALES TAX INSPECTOR, SALES TAX CHECK POST, WALAYAR, PALAKKAD. R1 TO R4 BY GOVERNMENT PLEADER MR.V.K. SHAMSUDEEN THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 21/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 27668/2001-R APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE RELEVANT PORTION OF NOTIFICATION IN KERLA FINANCE BILL, EXT.P2: COPY OF THE INTERIM ORDER IN O.P. NO. 25279 OF 2001. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE Rs/ P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ O. P. No. 27668 of 2001 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 21st day of May, 2009 JUDGMENT The petitioner seeks to challenge the proposed amendment introduced by the Kerala Finance Bill, 2001 to the extent it introduced a new provision as section '5 BA' to the Kerala General Sales Tax Act, stating that it is totally without any competence and therefore ultra virus, void and unenforceable in law. 2. When the matter came up for admission before this Court, an interim order was passed directing the petitioner to pay 50 % of licence fee as demanded u/s 5 B A of the Finance Bill 2001 and to furnish Bank Guarantee for the remaining extent of 50 %; simultaneously making it clear that, in case it was found that the petitioner was not liable to pay the same ; the amount would be refunded with statutory interest. 3. The learned Government Pleader fairly concedes that the matter stands covered in favour of the petitioner by virtue of the authoritative pronouncement of Law by the Apex Court as reported in Sunrise Associates Vs Government of NCT of Delhi and Others (145 STC 576). In the above circumstance, the O.P. stands allowed in conformity with the interim order dated 18.9.2001 and the amount already deposited by the petitioner is directed to be returned as specified. The Bank Guarantee furnished by the petitioner, if any, O.P No. 27668 of 2001 : 2 : pursuant to the very same interim order will stand permitted to be withdrawn. No cost. P. R. RAMACHANDRA MENON, JUDGE Kmd