IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 9TH NOVEMBER 2010 / 18TH KARTHIKA 1932 WP(C).No. 28492 of 2010(J) ------------------------ PETITIONER : ------------------ SPM POWER AND TELECOM PRIVATE LIMITED, HAVING REGISTERED OFFICE AT PLOT NO.A-28/1/12,I.D.A., NACHRAM, HYDERABAD, ANDHRA PRADESH. BY ADVS. SRI.JOMY GEORGE SRI.R.PADMARAJ SRI.M.J.BENNY SRI.SEBASTIAN THOMAS RESPONDENT(S): ------------------------ 1. M/S.BHARAT SANCHAR NIGAM LIMITED, REPRESENTED BY ITS CHIEF GENERAL MANAGER TELECOM, KERALA CIRCLE, THIRUVANANTHAPURAM, PIN-695 033. 2. COMMISSIONER OF THE COMMERCIAL TAXES, THIRUVANANTHAPURAM, PIN-695 001. 3. THE ASSISTANT COMMISSIONER (ASSESSMENT), SPECIAL CIRCLE, DEPARTMENT OF COMMERCIAL TAXES, THIRUVANANTHAPURAM, PIN-695 001. 4. STATE OF KERALA REPRESENTED BY ITS FINANCIAL SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001. R1 BY ADV. SMT.S.K.DEVI, SC, BSNL R2 TP R4 BY GOVT. PLEADER SRI. DILEEP MOHAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ANTONY DOMINIC, J. ------------------------- W.P (C) No.28492 of 2010 -------------------------- Dated this the 9th November, 2010 J U D G M E N T Based on an agreement between the petitioner and the respondents, petitioner supplied cables. Agreement provided that the petitioner will be entitled to refund of entry tax paid on production of the original receipts evidencing remittance of the tax. 2. After effecting supplies, by Ext.P2 series of bills, petitioner claimed refund of entry tax remitted. According to the petitioner, when the respondents were informed that original receipts were lost and therefore they are unable to produce the same, they were directed to produce duplicate copies of entry tax receipts along with an indemnity bond. 3. Petitioner submits that in compliance with the said direction, they submitted Ex.P3 indemnity bond and also Ext.P4 duplicate copies of the receipts duly attested by an Officer of the Sales Tax Department. However, the claim was rejected by Ext.P5 order passed on behalf of respondents stating that reimbursement can be made only W.P (C) No.28492 of 2010 2 with original tax receipts. It is challenging Ext.P5, the writ petition is filed. 4. The case of the petitioner is that in terms of the agreement he is entitled to refund of entry tax. It is stated that although they had the obligation to produce the original receipts, since originals were lost, they had produced certified copies along with an indemnity bond. It is submitted that therefore, their claim ought to have been allowed. 5. A counter affidavit has been filed on behalf of the respondents. In the counter affidavit, it is stated that though supply was made by the petitioner during 2005- 2006 refund of entry tax was claimed only during 2010- 2011. Apart from that it is also stated that the petitioner did not produce the original receipts evidencing payment of entry tax. On these grounds, first respondent seeks to justify Ext.P5. 6. In my view, petitioner is entitled to succeed in this writ petition. Although it is a fact that the petitioner should have produced the original tax receipts, it is the W.P (C) No.28492 of 2010 3 case of the petitioner that they lost the receipts and that therefore the petitioner produced Ext.P4, attested copies of the tax receipts along with Ext.P3 indemnity bond. In the counter affidavit there is no dispute about the genuineness of the documents. That apart, the liability to refund and amount claimed are undisputed. In such circumstances, I feel it was unreasonable on the part of the respondents to have declined refund on the ground that the petitioner had not produced the original tax receipts. 7. As already seen, the only ground of rejection in Ext.P5 is non-production of the original tax receipts. However in the counter affidavit delay is also pleaded against the petitioner. Having regard to the fact that liability and the quantum are accepted by the respondents and as the respondents have not shown that any prejudice has been caused on account of the delay in submitting Ext.P2 claims, I am inclined to think that the genuine claim of the petitioner should not be allowed to be defeated on the technical plea of delay which also has not caused any prejudice to the respondents. W.P (C) No.28492 of 2010 4 For these reasons, I quash Ext.P5 and direct the respondents to pass orders on the claim made by the petitioner. In the light of the above, first respondent is directed to re-consider the matter afresh and pass orders, at any rate ,within a period of six weeks of production of a copy of this judgment. ANTONY DOMINIC JUDGE ma