IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH MONDAY, THE 23RD JUNE 2008 / 2ND ASHADHA 1930 WP(C).No. 18323 of 2008(F) -------------------------- PETITIONER: ----------------- RAFEEQUE, PROPRIEOTR, M/S. JASMINE AGENCIES, S/O. AHEMMEDKUTTY A.K., AGED 35 YEARS, CHITTARIKKAL, KAZARAGOD DIST. BY ADV. SRI.V.V.PADMANABHAN SRI.C.K.SREEJITH RESPONDENTS: ---------------------- 1. THE DEPUTY COMMISSIONER (APPEALS) KOZHIKODE, COMMERCIAL TAXES. 2. THE COMMERCIAL TAX OFFICER (AUDIT ASSESSMENT) KASARAGOD. 3. INSPECTING ASSISTANT COMMISSIONER COMMERCIAL TAXES, KASARAGOD. 4. THE STATE OF KERALA REP. BY ITS SECRETARY TO GOVT COMMERCIAL TAXES, TRIVANDRUM. BY GOVT. PLEADER SRI. C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - WP.(C) No.18323 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of June, 2008 JUDGMENT Petitioner challenges the interim order passed by the appellate authority granting stay of payment of balance amount till the disposal of appeal filed by the petitioner against Ext.P3 order of assessment on condition that the petitioner remits 50% of the balance amount in two equal monthly instalments, the first instalment being payable on or before 20.6.2008 and the second instalment on or before 15.7.2008. The assessment relates to the year 2006-2007. Petitioner filed returns showing the total and taxable turnover of Rs.39,36,936/- as per the revised return. There was a cross verification of the sale list from M/s. Malabar Cements Ltd., and it was found that the petitioner had effected certain purchases for various months during 2006-2007. By making an estimation, turnover pegged at Rs.61,98,500/-. 2. I heard learned counsel for the petitioner and the learned Government Pleader. 3. Learned counsel for the petitioner points out that as correctly found by the appellate authority in Ext.P6 order the purchases were made by the petitioner from M/s. Malabar Cements, which is the WPC.18323/2008. 2 registered dealer and therefore tax is not payable under Section 6(2) of the Act. He would further contend that he is entitled to input tax credit if tax is to be assessed under Section 6(1) on the purchases from the registered dealer. He would therefore contend that he has made out a case for grant of stay and the appeal itself may be directed to be disposed of keeping in abeyance the recovery. After having gone through the matter, I feel that the petitioner is entitled to some relief. Accordingly, I direct that instead of 50% directed to be paid, petitioner need pay only 40% of the balance amount. It is stated that petitioner has already paid the first instalment. In such circumstances, it is ordered that the instalment to be paid on 15.7.2008 will comprise of such amount as would make total deposit 40% of the balance amount due instead of 50% ordered in Ext.P6. It is also directed that he must furnish security for the remaining amount to the satisfaction of the authority before 31.7.2008. The writ petition is disposed of as above. (K.M. JOSEPH, JUDGE) sb