IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH TUESDAY, THE 16TH DECEMBER 2008 / 25TH AGRAHAYANA 1930 WP(C).No. 36501 of 2008(U) -------------------------- PETITIONER(S): --------------------- BHARATH PETROLEUM CORPORATION LTD., ERNAKULAM TERRITORY (RETAIL), OFFICE,IRUMPANAM, KOCHI 682 309, REP. BY ITS ARE MARKETING MANAGER, SRI. S. KANNAN. BY ADV. SRI.V.V.ASOKAN SMT.S.AMINA RESPONDENT(S): ------------------------ 1. ASSISTANT COMMISSIONER (AUDIT ASSESSMENT), OFFICE OF THE DEPUTY COMMISSIONER, COMMERCIAL TAXES, ERNAKULAM. 2. ASSISTANT COMMISSIONER, ASSESSMENT-1, SPECIAL CIRCLE-II, COMMERCIAL TAXES, ERNAKULAM 682 030. 3. THE DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES, ERNAKULAM, KOCHI 682 030. 4. INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAXES, ERNAKULAM, KOCHI 682 030. BY GOVT.PLEADER SRI. C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - WP.(C) No. 36501of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of December, 2008 JUDGMENT Petitioner challenges Ext.P4. It also seeks a direction to dispose of Ext.P2 appeal on merits. Ext.P4 is an order of the appellate authority granting stay on the petitioner paying 50% of the disputed amount and furnishing security for the balance amount. Petitioner is a Public Sector Unit. The appeal came to be filed against Ext.P1, which is purportedly passed under Section 25 of the KVAT Act. 2. I heard learned counsel for the petitioner and the learned Government Pleader. 3. Learned counsel for the petitioner submits that the petitioner had taken up a contention that the first respondent has no jurisdiction to pass Ext.P1 order. According to him, the assessment is barred by virtue of the two years limit indicated in Section 24 of the Act. The limitation period expired, according to him, on 1.4.2008, and yet an order was passed on 19.5.2008. It is further submitted that even if the order is treated to be passed under Section 25, the first respondent has no authority to pass orders as it is only the assessing authority within the meaning of Section 25, which can pass the order. He further submits that very huge amounts have been WPC.36501/2008. 2 assessed against the petitioner on the premise that the petitioner is selling at a price which is lesser than its purchase price. He points out that petitioner is a public sector unit, which is governed by the orders of the Oil Co- ordination Committee and even if it purchases at a higher price, it is compelled to sell at a lower price and there is no sale suppression. According to him, these aspects have not been properly appreciated. 4. Per contra, learned Government Pleader points out that as far as the power to pass orders is concerned, the assessment is made under Section 25 and it is made by the first respondent, who is authorised by notification to exercise the power of the assessing authority. He points out to me the notification. He points out SRO.478/2005 as an answer to the contention of the learned counsel for the petitioner in regard to absence of power with the first respondent. He further points out that as far as the findings in Ext.P1 are concerned, they are based on records and no interference is called for. But at the same time, I feel that I cannot ignore the fact that petitioner is a public sector unit and I cannot also prima facie ignore the power of the Oil Co-ordination Committee and having regard to the totality of facts, I would think that interests of justice would be met if the petitioner is called upon to pay Rs.35 Crores and to furnish security for the balance. WPC.36501/2008. 3 Accordingly, I modify Ext.P4 and it is ordered that if the petitioner pays Rs.35 Crores within two weeks from today and also furnishes security for the balance amount, there will be a order of stay of Ext.P1 till the disposal of the appeal. The appeal will be disposed of, if the petitioner complies with the conditions, within a period of two months thereof. (K.M. JOSEPH, JUDGE) sb