IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 3RD DECEMBER 2009 / 12TH AGRAHAYANA 1931 WP(C).No. 32816 of 2009(V) -------------------------- PETITIONER(S): --------------- SMT.ELSAMMA FELIX, PROPRIETRIX, M/S.KOTTACHERRY TRADING COMPANY, P.O.AMBALATHARA, KANHANGAD. BY ADV. SRI.T.M.SREEDHARAN SMT.C.K.SHERIN SRI.V.P.NARAYANAN RESPONDENT(S): --------------- 1. THE COMMERCIAL TAX OFFICER, HOSDURG, KANHANGAD. 2. THE DEPUTY COMMISSIONER (APPEALS) COMMERCIAL TAXES, KASARAGOD. 3. THE INTELLIGENCE OFFICER, SQUAD NO.II, COCMMERCIAL TAXES, KASARAGOD. GOVERNMENT PLEADER SRI. V.K. SHAMSUDHEEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J. ------------------------------ W.P.(C).No.32816 OF 2009 ------------------------------ Dated this the 3rd day of December, 2009 J U D G M E N T ---------------------- 1. Petitioner is approaching this court seeking direction to respondents 1 and 2 to adjust/set off a sum of Rs.2,25,000/- payable under Ext.P1 interim order of stay, against the sum of Rs.2,72,700/- which is alleged to be due for refund to the petitioner, by virtue of Ext.P3 series orders. According to the petitioner penalties imposed under Section 29A (4) of the Kerala General Sales Tax Act were set aside in appeals as per Ext.P3 series orders and a total amount of Rs.2,72,700/- is liable for refund by the 3rd respondent. Complaint is that consequential orders in accordance with Ext.P3 series has not so far been issued, inspite of repeated requests made as evidenced from Ext.P2, P4 and P5. In the meanwhile, with respect to the assessments for the years 1999-2000 and 2000-01, the petitioner had preferred second appeals before the appellate Tribunal. Ext.P1 is the interim order issued on those appeals, insisting payment of an amount of Rs.75,000/- and Rs.1,50,000/- respectively, for the years 1999-2000 and 2000-01. The adjustment/set off is claimed under the above circumstances. W.P.(C).32816/09-V 2 2. In the statement filed on behalf of 1st respondent it is admitted that an amount of 2,72,700/- is due for refund with respect to the assessment years 1995-96 and 1996-97. But it is stated that with respect to assessment for 1997-98 there is a balance outstanding payment to the tune of Rs.3,06,515/- as tax and Rs.30,639/- as surcharge. In view of the refund due, coercive steps are not initiated for realising the amounts covered under the assessment for the year 1997-98 is the contention. 3. It is noticed that no formal order of refund pursuant to Ext.P3 series appellate orders have so far been issued. Nor the authority had effected any adjustment/set off of the amounts due thereunder against any other amount which is quantified and demanded. Therefore I am of the opinon that the respondents 1 and 2 shall be directed to take steps to do the needful for giving effect to Ext.P3 series appellate orders. Hence there will be a specific direction to respondents 1 and 3 to consider and pass orders on Ext.P12 and to effect refund or adjustment due thereon, as early as possible, at any rate within a period of one month from the date of receipt of a copy of this judgment. 4. Ext.P1 is an interlocutory order issued by the appellate Tribunal exercising discretion in respect of granting stay. I do not find any reason to interfere with that order, merely W.P.(C).32816/09-V 3 on the ground that certain amounts are allegedly due to the petitioner from the department with respect to some other proceedings. However, since it is admitted by the respondents that the amount is due for refund, I am of the opinion that it is only just and proper to defer payment of the amount stipulated in Ext.P1, till the respondents 1 and 3 take a decision on the question of refund, as per the direction given above. Therefore the 1st respondent is directed to keep in abeyance coercive steps of recovery pursuant to non-compliance of Ext.P1 order, for a period of six weeks from today. C.K.ABDUL REHIM, JUDGE. okb