Wp(C)/33105/2009 Of M/S.palia Brothers v. Agricultural Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 18TH NOVEMBER 2009 / 27TH KARTHIKA 1931 WP(C).No. 33105 of 2009(G) -------------------------- PETITIONER(S): --------------- M/S.PALIA BROTHERS, CHETHALAYAM, SULTHAN BATHERY, WAYANAD, REPRESENTED BY MANAGING PARTNER Y.R.PALIA. BY ADVS. SRI.V.C.JAMES SRI.GEORGE MECHERIL RESPONDENT(S): --------------- 1. AGRICULTURAL INCOME TAX AND COMMERCIAL TAX OFFICER, VAT CIRCLE, S.BATHERY, WAYANAD. VAT CIRCLE, S.BATHERY, WAYANAD. 2. THE DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES, KOZHIKODE. 3. THE INSPECTING ASSISTANT COMMISSIONER, DEPARTMENT OF COMMERCIAL TAXES, WAYANAD. 4. THE CHAIRMAN, MICRO AND SMALL ENTERPRISES FACILITATION COUNCIL, (DIRECTOR OF INDUSTRIES AND COMMERCE, THIRUVANANTHAPURAM). R1 TO R3 BY GOVT. PLEADER SRI. C.K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K. ABDUL REHIM, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 33105 of 2009 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18[th] day of November, 2009 J U D G M E N T 1.Claim for refund of alleged excess payment of tax,with respect to the assessment year 2007-08, submitted bythe petitioner, was rejected by the 1[st] respondent as perExt.P4 order. The petitioner had taken up the matter inappeal before the 2[nd] respondent as evidenced by Ext.P5.Along with the appeal the petitioner had also filed Ext.P6application seeking an early hearing of the matter. It issubmitted that Exts.P5 & P6 are pending consideration anddisposal before the 2[nd] respondent. 2.Further, Ext.P1 is the assessment order for theyear 2006-07. Exts.P2 & P3 are the appeal and stay petitionfiled against that order, which is pending considerationand disposal before the 2[nd] respondent. In the stay petitionfiled before that authority, Ext.P8 interim order was issuedgranting stay on condition of payment of Rs.1 lakh, on orbefore 06.07.09. It is stated that on failure of complying W.P.(C)No. 33105 of 2009 with the said condition, steps has now been initiated forrealisation of the amounts covered under Ext.P1. 3.Contention of the petitioner is that if Ext.P5appeal is considered and disposed of, the petitioner will beentitled for getting refund of huge amounts, which can beadjusted against payment stipulated in Ext.P8. It issubmitted that the revenue recovery steps now initiatedwithout disposing of Ext.P5 appeal is highly unreasonableand unjustifiable. Therefore the petitioner is seekingdirection for disposal of Ext.P5 appeal and also seekingdirections for keeping in abeyance the recovery steps, tillthen. 4.Having considered contentions and facts andcircumstances of the case, I am of the opinion that the 2[nd]respondent can be directed to dispose of Ext.P5 appeal onan early date. So also there can be a direction for disposalof Ext.P2 appeal as well. But the recovery of the amountcovered under Ext.P1 cannot be kept in abeyance in view ofthe fact that the petitioner had not complied with the W.P.(C)No. 33105 of 2009 -3- conditions stipulated in Ext.P8. 5.Under the above circumstances the writ petition is disposed of directing the 2[nd] respondent to consider andpass orders on Ext.P5 appeal, after affording an opportunityto the petitioner, as early as possible, at any rate within aperiod of one month from the date of receipt of a copy ofthis judgment. The 2[nd] respondent may also takes steps foran early disposal of Ext.P2 appeal. 6.It is further directed that on the event of Ext.P5appeal being allowed, the 1[st] respondent shall takeimmediate steps for effecting refund of the amounts due, ifany found or shall make adjustment of the amounts againstExt.P1 order of assessment. 7.The writ petition is disposed of with the aboveobservations. C.K. ABDUL REHIM JUDGE