IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH MONDAY, THE 4TH AUGUST 2008 / 13TH SRAVANA 1930 WP(C).No. 22962 of 2008(H) ----------------------------------------------- PETITIONER: ----------------- THOMAS V.ABRAHAM, PROPRIETOR EXCELL JEWELLERS, ITTIAPPARA, RANNI, PATHANAMTHITTA. BY ADV. SRI.S.ANIL KUMAR (TRIVANDRUM) RESPONDENTS: ----------------------- 1. COMMERCIAL TAX OFFICER (AA), PATHANAMTHITTA. 2. DEPUTY COMMISSIONER APPEALS, COMERCIAL TAXES, KOLLAM BY GOVERNMENT PLEADER SHRI C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH, J. -------------------------------------- W.P.C. NO. 22962 OF 2008 H -------------------------------------- Dated this the 4th August, 2008 JUDGMENT Petitioner challenges Ext.P3 which is an assessment order under the Kerala Value Added Tax Act. Petitioner preferred Ext.P4 Appeal against the said order and by Ext.P5, stay was granted on condition that the petitioner pays fifty per cent of the balance amount and furnishes security for the balance amount. 2. Heard the learned counsel for the petitioner and the learned Government Pleader. Counsel for petitioner contends that unlike the regime in the KGST Act, under the KVAT Act, Rule 39(5) provides that when there is suppression, unless there is a pattern, petitioner cannot be assessed for the entire year. Counsel points out that the suppression in this case relates only for the months of October, November and December, 2007. Learned Government Pleader, on the other hand, would point out that it may not be true. In Ext.P1 Notice, the stock analysis is stated to have revealed the following variations, namely there WPC.22962/08 H 2 is an excess of 2882.755 gm. gold ornaments, and new silver ornaments were found to be short by 3669.350 gm. Counsel for petitioner then points out that contrary to the proposal in Ext.P1, regarding the grant of special rebate in Ext.P3 in deviation from the proposal, special rebate is only in respect of what is claimed as per the accounts, under Section 6(2). But, though there is an estimate made under Section 6(2) of the KVAT Act, there is no special rebate granted in respect of the estimated turnover under Section 6(2), he complains. 3. Having considered all the facts, I feel that the interest of justice would be met that instead of directing the petitioner to pay fifty per cent, petitioner is called upon to pay at the rate of forty per cent of the tax and he must also furnish security for the balance amount. Accordingly, the Writ Petition is disposed of by modifying Ext.P5 and ordering that if the petitioner remits forty per cent of the balance tax and furnishes security for the balance amount to the satisfaction of the assessing authority within one week from today, recovery proceedings against the WPC.22962/08 H 3 petitioner will be kept in abeyance till the disposal of the Appeal. Sd/= K. M. JOSEPH, JUDGE kbk. // True Copy// PS to Judge