IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 28TH JANUARY 2011 / 8TH MAGHA 1932 WP(C).No. 2611 of 2011(B) ------------------------------------- PETITIONER: ------------------- PHILIPS CARBON BLACK LTD., KARIMUGAL, KOCHI-682 303. BY ADV. SRI.A.KUMAR. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY, MINISTRY OF FINANCE, GOVT. SECRETARIAT, THIRUVANANTHAPURAM-1. 2. ASSISTANT COMMISSIONER, DEPARTMENT OF COMMERCIAL TAXES, MATTANCHERRY AT ALUVA – 683 101. 3. COMMERCIAL TAX INSPECTOR (RR), OFFICE OF THE INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAXES, MATTANCHERY – 682 001. R1 TO R3 BY GOVT. PLEADER SRI. V.K. SHAMSUDHEEN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/01/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.2611 of 2011 ------------------------------------------- Dated this the 28th day of January, 2011 J U D G M E N T ---------------------- The writ petition is filed seeking the following reliefs; i. To issue a writ of declaration or any other appropriate writ, order or direction declaring that the provisions of Explanation-III(ii) to Section 2(l)(ii) and Explanation-VII hereto as inserted by the Kerala Value Added Tax (Amendment) Act, 2005 (Act No.39 of 2005) are beyond the legislative competence of the State under Serial No.54 of List II of the Seventh Schedule to the Constitution of India and is accordingly to be rendered void ab initio and unenforceable and is to be appropriately struck down. ii. Issue a writ of certiorari or such other appropriate writ order quashing Ext.P3 and P4 assessment orders. iii. Issue a writ of certiorari or such other appropriate writ order quashing the revenue recovery proceedings initiated through Ext.P11. iv. Issue a writ of prohibition or such other appropriate writ or order restraining the respondents from realizing any amounts pursuant to Ext.P3 and P4 assessment orders and the proceedings for recovery of the amounts covered thereunder through Ext.P11 Revenue recovery proceedings or under such other manner known to law. W.P.(C).2611/11 -2- 2. Regarding the first relief, which is the challenge against the provisions in Explanation-III(ii) to Section 2(l)(ii) and Explanation VII of the Kerala Value Added Tax Act, 2003 (KVAT Act), brought in through amendment in the year 2005, it is noticed that the issue now stands covered against the petitioner by virtue of judgment of a Division Bench in M/s.Madras Cements Vs. Asst. Commissioner (Audit Assmt.) & others ((2010) 18 KTR 214 (Ker)). As far as challenge against Ext.P3 and P4 orders of assessment also, since the dispute pertains exclusively with respect to assessment on the turnover of 'trade discount', I am of the view that the issue stands squarely covered by the decision cited above. 3. Learned counsel for the petitioner made an attempt to distinguish the dictum laid by this court in the decision cited supra and also made a challenge against correctness of the legal proposition. But I am of the view that if the petitioner has got any grievance against the decision, he has to take appropriate remedy before the appropriate court. As the legal position stands now, I am bound by the decision cited above. 4. However, learned counsel made an appeal to this court to direct to keep in abeyance the recovery steps as far as W.P.(C).2611/11 -3- Ext.P3 and P4 are concerned, in order to facilitate him to invoke statutory remedy by way of appeal or to challenge the same in appropriate proceedings. I am of the view that interest of justice will be served if the respondents are restrained from enforcing collection and recovery of the amounts covered under Ext.P3 and Ext.P4, which are now initiated on the basis of Ext.P11 notice, for reasonable period. 5. Accordingly, the writ petition is dismissed. But the respondents are directed to keep in abeyance collection and recovery of amounts covered under Ext.P3 and Ext.P4, which is now initiated on the basis of Ext.P11, for a period of six weeks from today, in order to facilitate the petitioner to take appropriate steps to challenge those orders in appropriate proceedings. C.K.ABDUL REHIM, JUDGE. okb