IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 16TH OCTOBER 2009 / 24TH ASWINA 1931 WP(C).No. 29258 of 2009(B) -------------------------- PETITIONER(S): --------------- M/S.A.M.S.SPICES & FOOD PRODUCTS PVT.LTD, THADAPARAMBA, PAYYANAD P.O., MANJERI, MALAPPURAM DISTRICT, REPRESENTED BY ITS MANAGING DIRECTOR, SRI.A.MOHAMMEDALI. BY ADV. SRI.N.MURALEEDHARAN NAIR SRI.ABHILASH T.G. RESPONDENT(S): --------------- 1. ASSISTANT COMMISSIONER (KVAT), SPECIAL CIRCLE, DEPARTMENT OF COMMERCIAL TAXES, MALAPPURAM. 2. DEPUTY COMMISSIONER (APPEALS), DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM. 3. INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAXES, MALAPPURAM AT MANJERI. GOVERNMENT PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J. ------------------------------ W.P.(C).No.29258 OF 2009 ------------------------------ Dated this the 16th day of October, 2009 J U D G M E N T ---------------------- 1. Petitioner is aggrieved by Ext.P1 and P2 assessments pertaining to the years 2005-06 and 2006-07. Against Ext.P1 and P2 the petitioner had already filed appeals before the 2nd respondent as evidenced by Ext.P3 and P4. Along with the appeals the petitioner had also filed Ext.P5 and P6 stay petitions as well as Ext.P7 and P8 petitions seeking early hearing of the appeals. It is submitted that the appeals as well as the accompanying applications are pending disposal before the 2nd respondent. Grievance of the petitioner is that without considering pendency of the appeals, steps are now being initiated for realisation of the amounts covered under the assessments, pursuant to issuance of Ext.P9 and P10 demand notices. 2. Contention of the petitioner is that Ext.P1 and P2 are orders of assessments issued on re-opening of the assessments once completed, under Section 25(1) of the Kerala Value Added Tax Act, 2003 (KVAT Act). The reason for re-opening was that the rate of tax adopted with respect to pickles sold by the W.P.(C).29258/09-B 2 petitioner was erroneous. The allegation was that the petitioner is selling pickles under registered trade mark which is taxable at 12.5%. But according to the petitioner he is not using the registered trade mark with respect to the sale of pickle and the liability is only to pay tax at 4% under entry 49 of the IIIrd Schedule to the KVAT Act. Hence it is contended that the petitioner is not at all liable to pay any amount demanded under Ext.P1 and P2, and hence seeking directions to stay recovery till the disposal of the appeals. 3. Since statutory appeals filed against the orders of assessments are pending consideration before the 2nd respondent appellate authority, it is for that authority to consider the question regarding granting of interim stay. It cannot be presumed that the appellate authority while disposing of the stay petitions will not advert to valid contentions if any raised by the petitioner. Under the above circumstances I am of the opinion that the writ petition can be disposed of directing the appellate authority to consider and dispose of the appeals as well as stay petitions. 4. The 2nd respondent is directed to take up the appeals and dispose of the same or to pass orders on the stay petitions after taking into consideration all the contentions raised by the petitioner in the appeals, after affording an opportunity of W.P.(C).29258/09-B 3 hearing to the petitioner, as early as possible, at any rate within a period of one month from the date of receipt of a copy of this judgment. 5. The respondents are restrained from realising the amount covered under Ext.P1 and P2 till orders are passed by the appellate authority either on the appeals or on the stay petitions, as directed above. The writ petition is disposed of as above. C.K.ABDUL REHIM, JUDGE. okb