IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC THURSDAY, THE 10TH DAY OF JANUARY 2013 20TH POUSHA 193 WP(C).No. 435 of 2013 (D) ------------------------- PETITIONER(S): ------------------------ SIVASANKARA PILLAI, ATHIRA TRADERS, NEDUMONCAVU, KOTTARAKKARA. BY ADVS. SRI.PREMJIT NAGENDRAN SRI.N.S.SHAJI RESPONDENT(S): ---------------------------- 1. THE COMMERCIAL TAX OFFICER II, KOTTARAKKARA-691 506.
2. THE DEPUTY COMMISSIONER (APPEALS) I, COMMERCIAL TAXES, KOLLAM-691 001.
3. THE INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAXES, KOTTARAKKARA-691 506. R1 TO R3 BY SR.GOVT. PLEADER SMT.SHOBA ANNAMMA EAPEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.435/2013 D APPENDIX PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF THE ORDER OF ASSESSMENT ORDER NO.32522020210/2009-10 DATED 8 3.2011 ISSUED BY THE 1ST RESPONDENTS. EXT.P2: TRUE COPY OF THE ORDER OF ASSESSMENT ORDER NO.32522020210/2010-11 DATED 8 3.2011 ISSUED BY THE 1ST RESPONDENT. EXT.P3: TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENTS FOR THE YEAR 2009 2010 DATED 17 01.2012. EXT.P4: TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENTS FOR THE YEAR 2010 2011 DATED 17 01.2012. EXT.P5: TRUE COPY OF THE STAY PETITION FILED BY THE PETITIONER FOR THE ASSESSMENT YEAR 2009 2010 DATED 6 11.2012. EXT.P6: TRUE COPY OF THE STAY PETTION FILED BY THE PETITIONER FOR THE ASSESSMENT YEAR 2010 2011 DATED 6 11.2012. EXT.P7: TRUE COPY OF THE ORDER NO.E-1020/2012 DTD.3.12.2012 ISSUED BY THE FIRST RESPONDENT. EXT.P8: TRUE COPY OF THE ORDER NO.KVATA-28/2012 & 29/2012 DTD.NIL ISSUED BY THE 2ND RESPONDENT. EXT.9: TRUE COPY OF THE ORDER NO.160/2011-12 DTD.24.08.2011 ISSUED BY THE THIRD RESPONDENT. RESPONDENTS' EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC, J.
================== W.P.(C) No. 435 of 2013 ================== Dated this the 10th day of January, 2013 JUDGMENT
Petitioner challenges Ext.P8 conditional order of stay passed by the appellate authority granting stay on condition that the petitioner remits 50% of the tax due under Exts.P1 and P2 and furnish security for the balance. Exts.P1 and P2 are the assessments completed under Section 25(1) of the KVAT Act for the years 2009-10 and 2010-11. In the assessment orders, input tax credit was denied. Aggrieved by the assessment orders, petitioner filed Exts.P3 and P4 appeals accompanied by Exts.P5 and P6 stay petitions. In the appeals and the stay petitions reliance was placed on the the sixth proviso to Section 6(5) of the KVAT Act, which was given retrospective effect from 01/04/2005 by virtue of the provisions of the Kerala Finance Act, 2012. On Exts.P5 and P6, Ext.P8 order of stay has been passed. It is this order which is under challenge. A reading of this order shows that the appellate authority has not dealt with any one of the contentions raised by the petitioner. It is on that basis that the WP(C) No.435/13 -2- conditional order has been passed. In my view, Ext.P8 discloses total non application of mind and for that reason, I set aside Ext.P8.
2. Therefore, the writ petition is disposed of directing the 2nd respondent to pass fresh orders on Exts.P5 and P6. This the 2nd respondent shall do within four weeks from today. In the meanwhile, further proceedings pursuant to Exts.P1 and P2 will stand deferred and Ext.P9 notice also will be kept in abeyance. Petitioner will produce a copy of this judgment along with a copy of the writ petition before the 2nd respondent for compliance. ANTONY DOMINIC, JUDGE Rp