IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 11TH NOVEMBER 2011 / 20TH KARTHIKA 1933 WP(C).No. 28523 of 2011(M) -------------------------- PETITIONER(S): --------------- M/S.TEAM TRADING CO., PUTHIYAKADAPPURAM, TANUR, MALAPPURAM, REPRESENTED BY MG.PARTNER, P.M.MUHAMMED HANEEFA. BY ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE SRI.C.A.SADASIVAN SRI.JOY P.JOSE SRI.SOJAN MATHEW SRI.K.N.KRISHNAN NAMBOOTHIRI SRI.C.V.SASI SRI.K.JAYAMOHANAN PILLAI RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY (TAXES), GOVT.SECRETARIATE, THIRUVANANTHAPURAM, PIN-695 001. 2. COMMERCIAL TAX OFFICER, TIRUR, MALAPPURAM DISTRICT, PIN-676 101. 3. DY.COMMISSIONER (APPEALS), COMMERCIAL TAXES, COMMERCIAL TAX OFFICE COMPLEX, ERNAKULAM-682 015. 4. DISTRICT COLLECTOR, MALAPPURAM DISTRICT AT UP HILL, MALAPPURAM, PIN-676 505. GOVT. PLEADER SHRI.MANOJ.P.KUNJACHAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 28523/2011 APPENDIX PETITIONER(S)' EXHIBITS EXT.P1- TRUE COPY OF THE MODIFIED ASSESSMENT ORDER DATED 30-01-2004 RELATING TO THE YEAR 1998-99. EXT.P2- TRUE COPY OF THE MODIFIED ASSESSMENT ORDER DATED 30-01-2004 RELATING TO THE YEAR 1999-2000. EXT.P3- TRUE COPY OF THE MODIFIED ASSESSMENT ORDER DATED 30-01-2004 RELATING TO THE YEAR 2001-01. EXT.P4- TRUE COPY OF THE MODIFIED ASSESSMENT ORDER DATED 30-01-2004 RELATING TO THE YEAR 2001-02. EXT.P5- TRUE COPY OF THE SRO.NO.417/2007 DATED 10-05-2007. EXT.P6- TRUE COPY OF THE ASSESSMENT ORDER FOR 2002-03 DATED 29-07-2008 COMPLETED U/S 17(D). EXT.P7- TRUE COPY OF THE APPELLATE ORDER STA NO.117/2011 24-08-2011 OF 3RD RESPONDENT RELATING TO THE YEAR 1998-99. EXT.P8- TRUE COPY OF THE APPELLATE ORDER STA NO.118/2011 24-08-2011 OF 3RD RESPONDENT RELATING TO THE YEAR 1999-2000. RESPONDENTS' EXHIBITS NIL. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No. 28523 of 2011 ================== Dated this the 11th day of November, 2011 J U D G M E N T The petitioner is a dealer in edible oil and palmolin. The petitioner purchased palmolin from registered dealers by paying tax during the assessment years 1998-99 to 2002-03 and sold the same under their brand name, “Team Gold”. The petitioner claimed exemption in respect of the turnover of palmolin so sold. The 2nd respondent disallowed the claim of the petitioner for the years 1998- 99 to 2001-2002. Those assessments were completed before 10.5.2007. On 10.5.2007, the Government of Kerala issued SRO 417/2007 (Ext.P5) exempting turn over of goods sold under the dealer's own brand name or trade mark with retrospective effect from 1.4.1998. But the first appeals filed against the assessment orders were decided on 25.9.2003 before issue of Ext.P5. In the same, the claim was disallowed insofar as at that time SRO 417 of 2007 had not yet been issued. The petitioner now seeks the benefits of Ext.P5 notification retrospectively with effect from 1.4.1998. But the petitioner could not get the relief in the appellate orders since the exemption was granted retrospectively with effect from 1.4.1998 only on 10.5.2007. The petitioner, therefore, seeks a direction to the assessing authority to reconsider the claim of the petitioner for w.p.c.28523/11 - : 2 :- exemption on the basis of SRO No.417/2007. The petitioner seeks the following reliefs: “a) Call for the records of the case leading to Ext.P1 & P2 assessment orders and appellate orders Ext.P7 and P8 and quash the same by issue of appropriate writ, order or direction. b) Issue a writ of mandamus or any other writ, order or direction in the nature of writ of mandamus directing the 2nd respondent to revise Ext.P1 & P2 assessment orders giving effect to the SRO 417/2007 (Ext.P5) ignoring Ext.P7 and P8 illegal appellate order. c) Issue a writ of mandamus or any other writ, order or direction in the nature of writ of mandamus directing the 2nd respondent not to realise by coercive steps the existing balance tax till disposal of the petition. d) Issue a writ of prohibition or any other appropriate writ direction or order in the nature of writ of prohibition restraining the 4th respondent from dispossing by auction sale of the attached vehicle kept at the Tanur, Police Station.” 2. I have heard the learned Government Pleader also. 3. I am of opinion that this is a peculiar circumstance which warrants interference by this Court, failing which the retrospective effect granted to SRO No.417/2007 would be meaningless. Insofar as the intention of the SRO was to give exemption retrospectively, there must be some way to see that the petitioner gets the benefit notwithstanding the fact that the assessment orders were confirmed in appeal before the issue of the SRO. The assessing orders and the appellate orders cannot be said to be wrong. There is also no point in either the petitioner challenging those orders in further appeals or setting aside the appellate orders since at the time when the appellate orders were passed, they were correct. I am of opinion that the only w.p.c.28523/11 - : 3 :- way to set right the situation is to direct the assessing authority to reopen and revise the assessment itself on the basis of SRO No.417/2007 to see if the petitioner is entitled to the retrospective benefit of the same. Accordingly, this writ petition is disposed of with a direction to the 2nd respondent to reconsider the assessment itself taking into account SRO No.417/2007 also. This shall be done without reference to the appellate orders confirming the assessment orders. The assessing authority shall not pass orders on the ground that the assessment orders have been upheld by the appellate authorities. If it is found that the petitioner is entitled to the benefit of the SRO, the same shall be given to the petitioner and to the assessments shall be modified accordingly. Orders in this regard shall be passed, as expeditiously as possible, at any rate, within two months from the date of receipt of a certified copy of this judgment, after affording an opportunity of being heard to the petitioner. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge