IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 24TH JANUARY 2008 / 4TH MAGHA 1929 WP(C).No. 37068 of 2007(K) -------------------------- PETITIONER: ------------------ M/S.THIRUVANKULAM TOURIST HOME, THIRUVANKULAM, REPRESENTED BY ITS MANAGING PARTNER P.I.KURIACHAN, S/O.ITTOOP, THIRUVANKULAM P.O., TRIPUNITHURA VIA, ERNAKULAM DISTRICT. BY ADV. SRI.BABU JOSEPH KURUVATHAZHA SRI.K.I.SAGEER RESPONDENTS: --------------------- 1. STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF TAXES, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DEPUTY COMMISSIONER OF COMMERCIAL TAXES, MATTANCHERRY. 3. INTELLIGENCE OFFICER, DEPARTMENT OF COMMERCIAL TAXES, MATTANCHERRY. 4. SALES TAX OFFICER, TRIPUNITHURA. ADDL.R5. INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAXES, KOCHI-30. (ADDL.R5 IMPLEADED AS PER ORDER IN IA NO.1137/08 DATED 24/1/2008) BY GOVT.PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. = = = = = = = = = = = = = = W.P. (C) No. 37068 OF 2007 K = = = = = = = = = = = = = = Dated this the 24th day of January, 2008 J U D G M E N T Exts. P1 to P3 are orders imposing penalty on the petitioner against which he had filed revisions. The revisions were disposed of by Ext. P4 order setting aside the penalty imposed on the petitioner by Ext.P1 to P3. In the concluding paragraph of Ext. P4, it has been stated that the exemption granted to the petitioner was erroneous and that the authority should take action for revising the assessment orders. Ext.P4 also records an undertaking given by the petitioner that they were ready to pay the tax due on the sale of soda effected during the three relevant assessment years. 2. In pursuance to the above, revised assessment was completed and Exts. P5, P6 and P6(a) are the revised assessment orders. Contrary to the undertaking that was given and recorded in Ext.P4, petitioner contested the revised assessment orders and filed appeal before the 2nd respondent. That appeal was allowed W.P.(C) No.37068/07 - 2 - and the revised assessment orders were set aside in Ext. P7 order of the 2nd respondent. The Revenue pursued the matter in appeal before the Tribunal and the Tribunal by Ext. P7(a) order, set aside Ext. P7 order of the 2nd respondent. Seeking rectification of Ext.P7 (a)petitioner filed applications under Section 43 of the KGST Act. These applications were considered and rejected by Ext. P8 order of the Tribunal and it is this order which is under challenge in this writ petition. 3. Petitioner contends that since Ext. P4 order has become final the rejection of its application for rectification by the Tribunal is erroneous. The contention raised on behalf of the learned Govt. Pleader is that the issue covered by Ext. P4 was penalty and that what is covered in Ext. P7(a) of the Tribunal is the liability of the petitioner for tax, which is levied on the petitioner. 4. Having considered the submissions made by both sides, I am inclined to agree with the learned Govt. Pleader. As can be seen from Ext.P4 order dealing with the correctness of the partly levied, the respondents had the liberty to revise the assessment orders and the petitioner had also conceded before the 2nd respondent that they are ready to pay the tax on the sale of soda effected during the W.P.(C) No.37068/07 - 3 - relevant 3 years. It is in pursuance to Ext. P4 that revised assessments were completed and Ext. P5, P6 and P6(a) were issued. However, contrary to the undertaking, that was contested and the appeal was allowed by Ext. P7. This naturally was set aside by the Tribunal in Ext. P7(a). Therefore, as far as Ext. P7(a) is concerned I do not think, the order setting aside the penalty imposed on the petitioner has any relevance. Paragraph 3 of Ext. P8 order now impugned before me also shows that there was absolutely no cogent evidence produced by the petitioner to prove payment of tax on his sale. It is on that reasoning that the Tribunal has sustained its order Ext. P7(a) by rejecting the rectification application. It was contended by the petitioner Ext.P4 has become final, the direction to revise the assessments also has become final. I do not find any merit in the writ petition. Writ petition is therefore dismissed. 5. At this stage, petitioner submits that they be given an instalment facility to discharge the liability that is due. Having considered the submissions made by the petitioner and also the learned Govt. Pleader I direct that the petitioner will be permitted to pay the amounts that are now due from him in three equal monthly instalments. The first instalment will be payable within one week W.P.(C) No.37068/07 - 4 - from today and the 2nd and 3rd instalments will be payable in the first week of February and March, 2008 respectively. I direct that the attachment of the bank account now effected shall be lifted only after the first instalment is paid and a bank guarantee is furnished for the remaining instalments. ANTONY DOMINIC JUDGE jan/-