IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 8TH JANUARY 2010 / 18TH POUSHA 1931 WP(C).No. 37385 of 2009(P) ------------------------------------- PETITIONER(S): ------------------- JOSEPH JOSE, PROPRIETOR, M/S.MERON, CHULLICKAL, KOCHI-05. BY ADVS.MR.V.P.SUKUMAR MR.KURYAN THOMAS RESPONDENT(S): ------------------------- 1. THE COMMERCIAL TAX OFFICER (VAT), II CIRCLE, MATTANCHERRY. 2. THE SALES TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH, ERNAKULAM. BY GOVT. PLEADER MR.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss P.R.RAMACHANDRA MENON, J ----------------------------- W.P(C) No.37385 of 2009 -P ------------------------------ Dated this the 8th day of January, 2010. J U D G M E N T Challenging Exts.P1 to P3 assessment orders, the petitioner has preferred Exts.P8 and P9 appeals before the second respondent. However, since the assessment was under Section 17D of the KGST Act, as per the stipulation under sub Section 5 of Section 17(D), the entire tax amount fixed by the assessing authority has to be satisfied for entertaining the appeal. The petitioner preferred the appeals, seeking permission from the first respondent/assessing authority to satisfy the liability by instalments. After considering the same, it was rejected by the authority by Ext.P7, stating that the said authority does not have any power, competence or jurisdiction to entertain the same; which hence is under challenge in this Writ Petition. 2. The learned counsel for the petitioner submits that the petitioner is ready and willing to satisfy the statutory requirement, so as to have the appeal entertained; but the fact that he only wanted some breathing time to effect the payment, for which the W.P(C) No.37385 of 2009 -P 2 instalment facility was sought for. 3. The learned counsel appearing for the respondent submits that the liability cast upon the concerned person is very much statutory and that the same cannot be varied or watered down in any manner. Unless and until the pre-requisite under Section 17 (D) (5) is satisfied, no appeal can be entertained. More so, the constitutional validity of the said provision has already been upheld by the learned Single Bench of this Court in Hindustan Petroleum Corporation Ltd. Vs. Assistant Commissioner, Commercial Taxes, Ernakulam and others (2009(4) KHC 819), which has been upheld by the Division Bench. It is also pointed out that Ext.P1 issued by the first respondent is in accordance with law and is not assailable under any circumstance. As such, this Court does not find any merit to interfere with the proceedings, since Ext.P1 issued by the first respondent is in accordance with law. 4. However, it will open for the petitioner, if he so choses, to satisfy the requirements under the statutory provisions so as to have the appeal entertained in accordance with law. 5. After hearing, the learned counsel for the petitioner submitted that the petitioner might be given an opportunity to clear W.P(C) No.37385 of 2009 -P 3 the tax liability by way of reasonable instalments. Taking note of the facts and circumstances and also the extent of liability fixed upon the petitioner, this Court permits the petitioner to clear the entire liability under Exts.P1 and P2 by way of 'four' equal monthly instalments; the first of which shall be effected on or before the 31st of this month, to be followed similar instalments to be effected on or before 25th of the succeeding months. It is also made clear that if any default is committed by the petitioner in clearing the liability as above, the respondents will be at liberty to proceed with further steps for realisation of the entire amount in a lump sum. The Writ Petition is disposed of accordingly. Sd/- P.R.RAMACHANDRA MENON JUDGE //True Copy// P.A to Judge ab