IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 28TH MAY 2010 / 7TH JYAISHTA 1932 WA.No. 856 of 2010 --------------------------- (AGAINST THE JUDGEMENT IN W.P.(C).NO.14618/2010 DTD. 17/05/2010) .................... APPELLANT/PETITIONER: -------------------------------------- ANTONY SUNNY, VELLARA TRANSPORT, 98/5, MAIN ROAD, PULIYOOR, C.F. POST, KARUR DISTRICT, TAMIL NADU. BY ADVS. SRI.HARISANKAR V. MENON, SMT.MEERA V.MENON. RESPONDENTS/RESPONDENTS: ----------------------------------------------- 1. COMMERCIAL TAX INSPECTOR, COMMERCIAL TAX CHECK POST, VALARA, PALAKKAD DISTRICT. 2. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, TAXES DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. R1 & R2 BY GOVT. PLEADER SRI. MOHAMMED RAFEEQ. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 28/05/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. --------------------------- W.A. No. 856 OF 2010 -------------------------- Dated this the 28th day of May, 2010 J U D G M E N T Ramachandran Nair, J. The appeal is filed against the judgment of the learned Single Judge directing release of the detained three truck chasis on the appellant depositing 50% of the security deposit demanded in cash and on furnishing security for the balance amount to the satisfaction of the authorities concerned. The appellant is engaged in transport service and chasis purchased are for construction of body building in Kerala, is his case. Prima facie we find force in this contention because nobody can trade in chasis of trucks without the required network in Kerala. However tax is necessarily payable for works contract by the body builder which he can recover from the appellant. In the circumstances, we allow the writ appeal by modifying the judgment as follows. The appellant will remit Rupees One and a half lakhs in the treasury towards the advance tax payable in the name of the body builder with whom appellant has the contract for body building and for this purpose, the assessing officer of the body builder will issue challan to the appellant with TIN number. Along with the receipted challan, the appellant will furnish a simple bond undertaking to pay any further amount to cover the balance tax or penalty, if any, levied on the transaction (body building) in excess of the amount paid towards advance tax. On W.A.No.856/2010 2 furnishing the simple bond and the challan towards the payment of Rupees One and a half lakhs towards advance tax, the respondents will transfer the file to the assessing officer before whom the body builder is registered. Adjudication will be taken up after 15th August, 2010, i.e., after the body builder files returns pertaining to the month of July. Tax liability will be determined by the assessing officer in the hands of the body builder. We make it clear that the officer should examine whether the body builder has returned the actual turnover and remitted the balance tax if any due after adjusting the advance tax paid. If transaction is not accounted or tax is not fully paid by the body builder, balance tax or penalty if levied will be recovered from the appellant as well, besides proceedings if any that would lie against the body builder. C.N.RAMACHANDRAN NAIR (JUDGE ) P.S.GOPINATHAN (JUDGE ) vps W.A.No.856/2010 3 W.A.No.856/2010 4