IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 18TH NOVEMBER 2009 / 27TH KARTHIKA 1931 WP(C).No. 33105 of 2009(G) -------------------------- PETITIONER(S): --------------- M/S.PALIA BROTHERS, CHETHALAYAM, SULTHAN BATHERY, WAYANAD, REPRESENTED BY MANAGING PARTNER Y.R.PALIA. BY ADVS. SRI.V.C.JAMES SRI.GEORGE MECHERIL RESPONDENT(S): --------------- 1. AGRICULTURAL INCOME TAX AND COMMERCIAL TAX OFFICER, VAT CIRCLE, S.BATHERY, WAYANAD. 2. THE DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES, KOZHIKODE. 3. THE INSPECTING ASSISTANT COMMISSIONER, DEPARTMENT OF COMMERCIAL TAXES, WAYANAD. 4. THE CHAIRMAN, MICRO AND SMALL ENTERPRISES FACILITATION COUNCIL, (DIRECTOR OF INDUSTRIES AND COMMERCE, THIRUVANANTHAPURAM). R1 TO R3 BY GOVT. PLEADER SRI. C.K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: shg/ C.K. ABDUL REHIM, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 33105 of 2009 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of November, 2009 J U D G M E N T 1. Claim for refund of alleged excess payment of tax, with respect to the assessment year 2007-08, submitted by the petitioner, was rejected by the 1st respondent as per Ext.P4 order. The petitioner had taken up the matter in appeal before the 2nd respondent as evidenced by Ext.P5. Along with the appeal the petitioner had also filed Ext.P6 application seeking an early hearing of the matter. It is submitted that Exts.P5 & P6 are pending consideration and disposal before the 2nd respondent. 2. Further, Ext.P1 is the assessment order for the year 2006-07. Exts.P2 & P3 are the appeal and stay petition filed against that order, which is pending consideration and disposal before the 2nd respondent. In the stay petition filed before that authority, Ext.P8 interim order was issued granting stay on condition of payment of Rs.1 lakh, on or before 06.07.09. It is stated that on failure of complying W.P.(C)No. 33105 of 2009 -2- with the said condition, steps has now been initiated for realisation of the amounts covered under Ext.P1. 3. Contention of the petitioner is that if Ext.P5 appeal is considered and disposed of, the petitioner will be entitled for getting refund of huge amounts, which can be adjusted against payment stipulated in Ext.P8. It is submitted that the revenue recovery steps now initiated without disposing of Ext.P5 appeal is highly unreasonable and unjustifiable. Therefore the petitioner is seeking direction for disposal of Ext.P5 appeal and also seeking directions for keeping in abeyance the recovery steps, till then. 4. Having considered contentions and facts and circumstances of the case, I am of the opinion that the 2nd respondent can be directed to dispose of Ext.P5 appeal on an early date. So also there can be a direction for disposal of Ext.P2 appeal as well. But the recovery of the amount covered under Ext.P1 cannot be kept in abeyance in view of the fact that the petitioner had not complied with the W.P.(C)No. 33105 of 2009 -3- conditions stipulated in Ext.P8. 5. Under the above circumstances the writ petition is disposed of directing the 2nd respondent to consider and pass orders on Ext.P5 appeal, after affording an opportunity 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. The 2nd respondent may also takes steps for an early disposal of Ext.P2 appeal. 6. It is further directed that on the event of Ext.P5 appeal being allowed, the 1st respondent shall take immediate steps for effecting refund of the amounts due, if any found or shall make adjustment of the amounts against Ext.P1 order of assessment. 7. The writ petition is disposed of with the above observations. C.K. ABDUL REHIM JUDGE shg/