IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.P.RAY FRIDAY, THE 4TH MARCH 2011 / 13TH PHALGUNA 1932 ST.Rev..No. 167 of 2010() ------------------------- TA.363/2008 of S.T.A.TRIBUNAL,ADDL.BENCH,PALAKKAD .................... REVISION PETITIONER/RESPONDENT/REVENUE ---------------------------------------------------------- STATE OF KERALA, REP.BY DEPUTY COMMISSIONER (LAW), COMMERCIAL TAXES, ERNAKULAM. BY GOVERNMENT PLEADER SRI. V.K. SHAMSUDEEN RESPONDENT(S): APPELLANT/ASSESSEE --------------------------------- INDUS MOTOR COMPANY (P) LTD., CHAKKORATHUKULAM, KOZHIKODE. ADV. SRI.R.RAMADAS THIS SALES TAX REVISION HAVING COME UP FOR ADMISSION ON 04/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C .N. RAMACHANDRAN NAIR, & BHABANI PRASAD RAY, JJ. -------------------------------------------- S. T. Rev. No. 167 of 2010 -------------------------------------------- Dated this the 4th day of March, 2011 JUDGMENT Ramachandran Nair, J. Heard Government Pleader and counsel appearing for the respondent. The issue whether replacement under warranty attracts sales tax is covered in favour of the State by judgment of the Supreme Court reported in MOHAMMED EKRAM KHAN & SONS V. COMMISSIONER OF TRADE TAX, U.P., 136 STC 515 under which warranty replacement attracts sales tax. However, counsel for the respondent pointed out that Supreme Court has admitted another appeal from the judgment of this Court in the case of KVR AUTOMOBILES, and the same is pending as SLP 33558 of 2009. The prayer of the party in that case is not to apply the judgment of the Supreme Court for periods prior to the pronouncement of judgment. This is because the party was barred from collecting tax based on decision of this Court in GEO MOTORS' case, which was reversed by the Supreme Court. Since the issue raised is a pure question of law, which will depend 2 upon the judgment of the Supreme Court in the SLP pending in the case of KVR AUTOMOBILES, we feel the benefit should be accorded to the respondent as well without insisting of their going to Supreme Court in the very same matter. Accordingly, we allow this revision conditionlly by reversing the order of the Tribunal and by restoring the assessment with direction to the assessing officer to modify the assessment and grant consequential relief to the respondent if Supreme Court takes the view in favour of the assessee in the case pending before the Supreme Court. However, tax under assessment could be collected subject to respondent's entitlement for refund in the event of Supreme Court holding that the law laid down by the Supreme Court in the above case applies prospectively. (C.N.RAMACHANDRAN NAIR) Judge. (BHABANI PRASAD RAY) Judge. 3 kk