IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 15TH JUNE 2011 / 25TH JYAISHTA 1933 WP(C).No. 16013 of 2011(B) ------------------------------------- PETITIONER(S): ------------------------ S.JOHNSON, JOHNSON WOOD INDUSTRIES, CONVENT ROAD, PRAVACHAMBALAM, THIRUVANANTHAPURAM BY ADV. SRI.VIJAYAN. K.U. SRI.K.N.SREEKUMARAN RESPONDENT(S): ------------------------- 1. ASSISTANT COMMISSIONER, COMMERCIAL TAXES, SPECIAL CIRCLE, VANCHIYOOR, THIRUVANANTHAPURAM-695001 2. DEPUTY COMMISSIONER, COMMERCIAL TAXES, PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM-1 3. THE MANAGER, CATHOLIC SYRIAN BANK LTD, NEMOM, THIRUVANANTHAPURAM.695001 4. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.695001 BY GOVERNMENT PLEADER SRI V.K.SHAMSUDHEEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 16013 of 2011(B) APPENDIX EXHIBIT-P1: TRUE COPY OF THE APPEAL MEMORANDUM DTD. 7.2.2011 FILED BEFORE THE 2ND RESPONDENT. EXHIBIT-P2: TRUE COPY OF THE STAY ORDER DTD. 15.3.2011 IN KVATA 483/10 OF THE 2ND RESPONDENT. EXHIBIT-P3: TRUE COPY OF THE JUDGMENT DTD. 23.3.2011 IN W.P.(C) NO.8846/2011 OF THE HON'BLE HIGH COURT OF KERALA. EXHIBIT-P4: TRUE COPY OF THE DD FOR RS.3,32,950/- WITH COVERING LETTER DTD. 5.4.2011 FILED BEFORE THE 1ST RESPONDENT. EXHIBIT-P5: TRUE COPY OF THE ASSESSMENT ORDER FOR 2009-10 DTD. 6.4.2011 ISSUED BY THE 1ST RESPONDENT. EXHIBIT-P6: TRUE COPY OF THE APPEAL DTD. 7.5.2011 AGANST EXT.P5 ORDER FILED BEFORE THE 2ND RESPONDENT. EXHIBIT-P6(A): TRUE COPY OF THE STAY PETITION IN APPEAL AGAINST EXT.P6 ORDER BEFORE THE 2ND RESPONDENT. EXHIBIT-P6(B): TRUE COPY OF THE EARLY HEARING PETITIONIN IN APPEAL AGAINST EXT.P6 ORDER BEFORE THE 2ND RESPONDENT. EXHIBIT-P7: TRUE COPY OF THE ARREAR NOTICE IN FORM 12A DTD.27-5-2011 EXHIBIT-P8: TRUE COPY OF THE REQUEST LETTER DTD.3.6.2011 WITH THE ENDORSEMENT OF REFUSAL DTD.4.6.2011. EXHIBIT-P9: TRUE COPY OF THE ATTACHMENT NOTICE IN FORM 23 B ISSUED BY THE 1ST RESPONDENT TO THE 3RD RESPONDENT. //TRUE COPY// P.S. TO JUDGE MNS C.K.ABDUL REHIM,J. ------------------------------- WP(C).NO. 16013 of 2011 --------------------------------- Dated this the 15th day of June, 2011 JUDGMENT Aggrieved by an order through which penalty was imposed against the petitioner under section 67(1) of the KVAT Act, statutory appeal was filed before the 2nd respondent as evidenced from Ext.P1. Through Ext.P2 the 2nd respondent had granted an interim stay against realisation of the amount of penalty, pending disposal of the appeal, subject to condition of the petitioner remitting 40% of the amount in dispute and also on furnishing security for the balance. Ext.P2 order was challenged before this court and in Ext.P3 judgment the 2nd respondent was directed to consider and dispose of Ext.P1 appeal within a period of two months from the date of receipt of a copy of that judgment. The interim order issued by the 2nd respondent was modified to the extent of reducing the condition to 20%. The petitioner was directed to make payment of 20% of the amount of penalty which is under dispute and to furnish security bond for the balance amount. WP(C) .16013/2011 2 2. It is stated that the condition stipulated through Ext.P2 judgment was already complied with and a demand draft as per Ext.P4 was submitted towards payment of the amounts stipulated. 3. In the meanwhile, the 1st respondent had finalised assessment against the petitioner with respect to the very same period under Ext.P5 order. According to the petitioner the assessment was made solely basing on the order of penalty which is already under challenge before the 2nd respondent. However, against the order of assessment ALSO the petitioner had preferred Ext.P6 appeal before the 2nd respondent, accompanied with Ext.P6(a) and Ext.P6(b) applications seeking stay as well as early hearing of the appeals. Grievance voiced by the petitioner at present is that, in the meanwhile, without considering pendency of the appeals before the 2nd respondent, coercive steps has been initiated for realising the amounts due under the order of assessment and prohibitory orders were issued restraining operation of the Bank Account held by the petitioner in the 3rd respondent Bank, as per Ext.P9 notice. WP(C) .16013/2011 3 4. Considering the fact that this court had already issued a direction to the 2nd respondent to dispose of Ext.P1 appeal, I am of the view that the direction for disposal of Ext.P6 appeal along with Ext.P1 appeal, will serve the ends of justice. This is especially because, contention raised by the petitioner is that the assessment is solely based on the order of penalty which is under challenge before the 2nd respondent. 5. Therefore the writ petition is disposed of directing the 2nd respondent to consider and dispose of Ext.P6 appeal along with disposal of Ext.P1 appeal as directed through Ext.P3 judgment. 6. Till such time orders are issued on the appeals as directed above, recovery of amount covered under Ext.P5 shall be kept in abeyance. Needless to say that the prohibitory orders issued under Ext.P9 will not be operative till such time. 7. The petitioner will produce a copy of this judgment before the 2nd respondent. C.K.ABDUL REHIM,JUDGE pmn/ WP(C) .16013/2011 4