IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 21ST JANUARY 2011 / 1ST MAGHA 1932 WP(C).No. 1216 of 2011(B) ------------------------------------- PETITIONER(S): ----------------------- CHERIAN P.PUNNOOSE, PARTNER, M/S.GENUINE ENTERPRISES, S.H.MOUNT P.O., KOTTAYAM. BY ADV. SRI.C.K.SREEJITH RESPONDENT(S): --------------------------- 1. INSPECTING ASST. COMMISSIONER, COMMERCIAL TAXES DEPARTMENT, KOTTAYAM-686 039. 2. COMMERCIAL TAX OFFICER, FIRST CIRCLE, KOTTAYAM-686 039. 3. DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES, KOTTAYAM-686 039. 4. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVT., TAXES DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM-695 001. R1 TO R4 BY GOVT. PLEADER MR.C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/01/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.1216 of 2011 ------------------------------------------- Dated this the 21st day of January, 2011 J U D G M E N T ---------------------- With respect to the year 2009-10, assessment against the petitioner was completed under Section 25(1) of the Kerala Value Added Tax Act, 2003 (KVAT Act), as per Ext.P1. Ext.P2 is the demand notice issued. For the very same year penalty was also imposed on the petitioner under Section 67(1), as per Ext.P3. Ext.P4 is the demand notice issued in this regard. On failure to make payment of the amounts under demand, revenue recovery steps were initiated on the basis of Ext.P5 demand notice issued under Section 7 of the Kerala Revenue Recovery Act, 1968. 2. According to the petitioner, challenging Ext.P3 order imposing penalty, he had already filed statutory appeal before the Deputy Commissioner (Appeals), Ernakulam as evidenced from Ext.P9. The appeal was filed along with a petitioner seeking condonation delay, as per Ext.P10. The petitioner had also filed Ext.P12 application seeking stay of collection of the amount of penalty. Ext.P6 to P8 chellan receipts are produced evidencing payment of the required W.P.(C).1216/11 -2- amounts for filing of the above said appeal and the accompanying applications. According to the petitioner the appeal as well as accompanying applications are pending consideration and disposal before the appellate authority. Hence the petitioner seeks direction for an early disposal of the appeal and till then to restrain the recovery steps. 3. It is noticed that the petitioner had filed appeal only against Ext.P3 order imposing penalty. The challenge against Ext.P1 order of assessment could not be entertained in this writ petition considering availability of the effective alternative remedy of appeal. However, it is made clear that the petitioner will be at liberty to seek appropriate statutory remedy by filing appeal against Ext.P1. 4. With respect to the appeal already filed against the order imposing penalty, I am of the view that the appellate authority can be directed to expedite the matter. 5. Accordingly the Deputy Commissioner (Appeals), Ernakulam is hereby directed to consider and pass orders on Ext.P10 delay condonation application filed along with Ext.P9 appeal, after affording an opportunity of hearing to the petitioner, as early as possible, at any rate within a period of one W.P.(C).1216/11 -3- month from the date of receipt of a copy of this judgment. If delay in filing the appeal is condoned, then the appellate authority shall consider and pass appropriate orders on Ext.P12 stay petition, simultaneously. 6. Till such time orders are issued by the appellate authority as directed above, recovery of the amounts of penalty covered under Ext.P3 shall be kept in abeyance. 7. With respect to the recovery of the tax amount covered under Ext.P1 order of assessment and Ext.P2 demand, the respondents are restrained from taking any coercive steps for a period of one month from today, in order to facilitate the petitioner to approach the appellate authority and to seek appropriate interim relief. 8. The petitioner will produce a copy of this judgment before the authorities concerned. C.K.ABDUL REHIM, JUDGE. okb