IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 25TH FEBRUARY 2008 / 6TH PHALGUNA 1929 WP(C).No. 36645 of 2007(K) --------------------------------------- PETITIONER: ------------------- A.JOHN KENNEDY, PROPRIETOR, MEGHA DISTRIBUTOR, OFFICE AT 15/650, KUNNATHUR MEDU, COIMBATORE MAIN ROAD, PALAKKAD. BY SR. COUNSEL SRI. S. GANESH. ADV. SRI.A.KUMAR. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, GOVT. OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. SECRETARY, TAXES (H) DEPARTMENT, GOVT. OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. COMMISSIONER OF COMMERCIAL TAXES, COMMERCIAL TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 4. THE DIRECTOR, KERALA STATE LOTTERIES, GOVT. OF KERALA, THIRUVANANTHAPURAM. 5. THE DEPUTY COMMISSIONER, COMMERCIAL TAXES DEPARTMENT, PALAKKAD. 6. THE ASSISTANT COMMISSIONER (ASSESSMENT) COMMERCIAL TAXES, SPECIAL CIRCLE, PALAKKAD. 7. ROYAL GOVERNMENT OF BHUTAN, MINISTRY OF FINANCE, DIRECTORATE OF LOTTERIES, PHUENTSHOLING, BHUTAN, REPRESENTED BY ITS DEPUTY SECRETARY. SR. COUNSEL SRI. VENKATARAMANI FOR STATE OF KERALA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/01/2008, THE COURT ON 25/02/2008 DELIVERED THE FOLLOWING: W.P.(C). NO.36645/2007-K: APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE APPLICATION FOR REGISTRATION DTD. 03/05/2004. EXT.P.1.A: COPY OF THE REGISTRATION CERTIFICATE DTD. 07/07/2005. EXT.P.2: COPY OF THE LETTER OF THE ROYAL GOVERNMENT OF BHUTAN DT. 30/11/2007. EXT.P.3: COPY OF THE CERTIFICATE ISSUED BY THE ROYAL GOVERNMENT OF BHUTAN DTD. 30/11/07. EXT.P.4: COPY OF THE COVERING LETTER DTD. 03/12/2007 ALONG WITH DEMAND DRAFT FOR RS.3,10,00,000. EXT.P.5: COPY OF THE LETTER DTD. 03/12/2007 ALONG WITH DEMAND DRAFTS FOR RS.40000. EXT.P.6: COPY OF THE LETTER DTD. 07/12/2007 SENT TO R.2. EXT.P.7: COPY OF THE JUDGEMENT DT. 10/01/2007 IN W.P.(C). NO. 30355/2006. EXT.P.8: COPY OF THE JUDGEMENT IN W.A. NO. 88/2007 DTD. 30/03/2007. EXT.P.9: COPY OF THE INTERIM ORDER DTD. 18/12/2007 PASSED BY THIS HONOURABLE COURT IN THE ABOVE WRIT PETITION. EXT.P.10: COPY OF THE LETTER DTD. 21/12/2007 OF THE PETITIONER TO R.6. EXT.P.11: COPY OF THE LETTER DT. 22/12/2007 BY THE PETITIONER ENCLOSING DDs TOWARDS ADVANCE TAX AND INTEREST. EXT.P.11.A: COPIES OF THE DDs (SIX IN NUMBER) TOWARDS THE ADVANCE TAX AND INTEREST. EXT.P.11.B: COPY OF THE STATEMENT OF DRAWS AND DETAILS OF TAX PAID. EXT.P.12: NOTARIZED COPY OF THE CERTIFICATE ISSUED ON 21/12/2007. EXT.P.13: COPY OF THE LETTER SENT BY THE R.6 DT. 22/12/2007. RESPONDENT'S EXHIBITS: EXT.R1.A: COPY OF THE CERTIFICATE ISSUED BY THE ROYAL GOVERNMENT OF BHUTAN. EXT.R1.B: COPY OF THE ASSESSMENT ORDER WITH RESPECT TO APRIL 2007. W.P.(C). NO.36645/2007-K: EXT.R1.C: COPY OF THE COVERING LETTER DTD. 28/03/2007. EXT.R1.D: COPY OF THE CERTIFICATE ISSUED BY THE R.6 DTD. 28/03/2007. EXT.R1.E: COPY OF THE COVERING LETTER DTD. 03/04/2007 FOR APPLICATION FOR RENEWAL OF REGISTRATION. EXT.R1.F: COPY OF THE COVERING LETTER DTD. 03/04/2007 FOR REGISTRATION CERTIFICATE. EXT.R1.G: COPY OF THE AGREEMENT MADE BETWEEN THE ROYAL GOVERNMENT OF BHTAN AND M/S. MARTIN LOTTERY AGENCIES LIMITED DTD. 28/11/2007. EXT.R1.H: COPY OF THE SUPPLEMENTARY AGREEMENT BETWEEN M/S. MARTIN LOTTERY AGENCIES AND THE PETITIONER DTD. 30/11/2007. //TRUE COPY// prv. ANTONY DOMINIC, J. =============== W.P.(C) NO. 36645 OF 2007 K ===================== Dated this the 18th day of December, 2007 O R D E R Government Pleader takes notice for R1 to R6. Sri.Arikkat Vijayan Menon, standing counsel takes notice for R7. 2. Ext.P1 is the application made by the petitioner describing himself as distributor of Sikkim and Bhutan lotteries. On the strength of Ext.P1, Ext.P1(a) certificate of registration was granted to the petitioner, which is valid until cancelled. It is noteworthy that Ext.P1(a) does not confine the registration to the lottery run by any particular State. 3. On the strength of Ext.P1(a) Certificate of Registration, it is stated that the petitioner was carrying on the lottery business and according to the learned Government Pleader, this was discontinued with effect from 1/8/06. In any case, petitioner has again started distribution of Bhutan lottery WPC 36645/07 :2 : and according to the petitioner, in terms of the provisions contained the Tax on Paper Lotteries Act, 2005, tax for the paper lottery for January, 2008 was tendered by Exts. P4 and P5. That was refused to be accepted inspite of representations made and hence this writ petition has been filed. 4. The objection raised by the learned Government Pleader is basically that the registration obtained by the petitioner is presently only with reference to Sikkim. Prima facie, this argument of the learned Government pleader cannot be accepted. As I have already noticed, Ext.P1 application made by the petitioner includes Bhutan lottery as well. It is not in controversy that the certificate does not confine itself to any one of the States. Although this contention of the learned Government Pleader that the petitioner had discontinued his business w.e.f. 1/8/06, it is not in dispute that the registration has not been recalled or withdrawn by the respondents. If that be so, on the strength of Ext.P1(a) certificate of registration obtained by the petitioner, prima facie, I am of the view that the petitioner is entitled to continue business as before. 5. The fact that the State is liable to accept tax from a promoter like the petitioner is also covered against the State by WPC 36645/07 :3 : virtue of Ext.P8 Division Bench judgment of this Court in WA 88/07. Although the learned Government Pleader has pointed out that State has filed an SLP against this judgment, it is the admitted position that the Apex Court has not granted any stay of operation of Ext.P8 judgment. 6. In view of the position as above, I am satisfied that the petitioner has made out a prima facie case for an interim order. 7. In view of this, it is directed that the 6th respondent shall accept the tax from the petitioner relating to the period 1/1/08 to 31/1/08 provisionally and subject to the result of the writ petition. Respondents shall file their counter affidavit. Post in the second week of January 2008. Hand over the order. ANTONY DOMINIC, JUDGE. Rp