IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 29TH MARCH 2010 / 8TH CHAITHRA 1932 WP(C).No. 9441 of 2010(E) ---------------------------------------- PETITIONER(S): ------------------------ P.T.MUSTHAFA, ELITE SANITARY WARES, CHEUVANNUR, FEROKE, KOZHIKODE. BY ADVS. MR.N.MURALEEDHARAN NAIR, MR.T.G.ABHILASH. RESPONDENT(S): --------------------------- 1. ASSISTANT COMMISSIONER-II,SPECIAL CIRCLE-1, COMMERCIAL TAXES,KOZHIKODE. 2. DEPUTY COMMISSIONER(APPEALS), DEPARTMENT OF COMMERCIAL TAXES,KOZHIKODE. R1 & R2 BY GOVERNMENT PLEADER MR. C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss P.R. RAMACHANDRA MENON, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C).No. 9441 of 2010 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 29th day of March, 2010 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ J U D G M E N T Challenging Ext.P1 assessment order, the petitioner had preferred Ext.P2 appeal, along with Ext.P3 petition for stay and Ext.P4 petition for early hearing. After considering the prayer for interim stay, Ext.P5 order was passed by 2nd respondent on 3.3.2010, whereby the petitioner has been directed to deposit a sum of Rs.1 lakh within the specified time and to furnish security for the balance amount, to the satisfaction of the assessing authority, which is under challenge in this Writ Petition. 2. The case of the petitioner is that, the disputed figure of Rs.12,39,319/- is not liable to be reckoned for the purpose of assessment under the KVAT Act, in view of the stipulation under the '5th proviso' to Section 11(3), as amended by the Kerala Financial Act 2009 with effect from 2005. It is also W.P.(C).No. 9441 of 2010 2 stated that, the supplier M/s.Madras Cements Ltd. have certified that, they have not deducted the said amount given to the appellant by way of discount, from the total taxable turnover and that they have paid tax on the amount of discount as well. 3. Heard the learned Government Pleader as well. 4. The learned counsel for the petitioner submits that the petitioner has produced the requisite proof, as to a declaration dated 13.2.2008 issued by the supplier M/s. Madras Cements Ltd. produced as Ext.P7 along with I.A.671/2010. It is very much evident from the proceedings on record that, the said certificate/declaration issued by M/s.Madras Cements Ltd. was very much produced by the petitioner before the assessing authority as well, as specifically referred to in Ext.P1 order itself. This being the position, this Court finds that, the appellate authority shall consider the specific contention raised by the petitioner, as to the sustainability of the impugned proceedings, with W.P.(C).No. 9441 of 2010 3 reference to the relevant provisions of law and the binding judicial precedents. 5. In the above circumstance, the 2nd respondent is directed to consider and pass appropriate orders on Ext.P2 appeal in accordance with law, after hearing the petitioner as expeditiously as possible, at any rate within six weeks from the date of receipt of a copy of this judgment. The petitioner shall furnish sufficient security in respect of the disputed liability so as to avail the benefit of interim stay granted by the appellate authority vide Ext.P5. Interference is made only to the extent, the appellate authority has imposed a condition to effect the 'cash deposit' as specified in Ext.P5. The Writ Petition is disposed of accordingly. P.R. RAMACHANDRA MENON JUDGE nl