Kerala High Court
M/S.Kone Elevator India (P) Ltd vs The State Of Kerala on 13 February, 2008
Author: C.N.Ramachandran Nair
Bench: C.N.Ramachandran Nair
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
WEDNESDAY, THE 4TH DAY OF JUNE 2014/14TH JYAISHTA, 1936
WP(C).No. 11911 of 2008 (R)
----------------------------
PETITIONER:
----------------------
M/S.KONE ELEVATOR INDIA (P) LTD.,
NO.41/1684, PUTHENKALAM, PEEYOLI LANE,
KOCHI-18, REPRESENTED BY ITS BUSINEES MANAGER,
P.S.SUDHEER.
BY ADVS.SRI.N.MURALEEDHARAN NAIR
SRI.V.K.SHAMUSUDHEEN
RESPONDENTS:
----------------------------
1. THE STATE OF KERALA,
REPRESENTED BY ITS SECRETARY TO TAXES DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM.
2. ASSISTANT COMMISSIONER (ASSESSMENT),
SPECIAL CIRCLE-II, KVAT,SALES TAX COMPLEX,
THEVARA, ERNAKULAM.
3. INTELLIGENCE OFFICER (I.B),
O/O. THE DEPUTY COMMISSIONER (INTELLIGENCE),
DEPARTMENT OF COMMERCIAL TAXES, EDAPPALLY,KOCHI-24.
BY SR.GOVERNMENT PLEADER SMT.SHOBA ANNAMMA EAPEN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 04-06-2014 ALONG WITH WPC.NO. 15819/2008 AND
CONNECTED CASES, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
Kss
WPC.NO.11911/2008(R)
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P1: COPY OF THE NOTICE ISSUED BY 3RD RESPONDENT DATED
13/02/2008.
EXT.P2: COPY OF THE REFERENCE ORDER PASSED IN WPC.NO.232/2005
DATED 13/02/2008.
EXT.P3: COPY OF THE WPC.NO.528/2005 DATED 3/10/2005 FILED BEFORE
SUPREME COURT.
EXT.P4: COPY OF THE ORDER OF THE APEX COURT DATED 24/10/2005.
EXT.P5: COPY OF THE OBJECTION FILED BY THE PETITIONER BEFORE
THE 3RD RESPONDENT DATED 25/02/2008.
EXT.P6: COPY OF THE HEARING NOTE FILED BY THE PETITIONER DATED
25/03/2008.
EXT.P7: COPY OF THE ORDER IN S.L.P.NOS. 21101-21102/07 DATED
11/01/2008.
RESPONDENT'S EXHIBITS: N I L
/TRUE COPY/
P.A.TO JUDGE
Kss
C.N.RAMACHANDRAN NAIR, J.
-------------------------
W.P.(C) No. 11911 of 2008
---------------------------------
Dated, this the 8th day of April, 2008
O R D E R
GP takes notice for the respondents.
Petitioner is challenging Ext.P1 notice, whereunder the 3rd respondent has proposed penalty for evasion of tax in the monthly returns filed for April to November 2007, wherein petiitoner claimed exemption on 15% of the sales turnover of 'lift' towards labour charges. Shri.R.L.Ramani, learned counsel appearing for the petitioner has relied on Ext.P4 order, whereunder the Supreme Court has stayed recovery, in petitioner's own case for earlier years, wherein the demand is stated to be at 15% of the total turnover over the 5% paid by the petiitoner at compounded rate. Learned Government Pleader pointed out that petitioner is liable to pay tax at 12.5% of the entire turnover by virtue of notification S.R.O.82/06 issued under Section 6(1) of the KVAT Act. He further contended that the issue is covered against the petitioner vide decision of the Supreme Court in State of Andhra Pradesh Vs. Kone Elevators (India) Ltd., reported in 140 STC 22. However, the Supreme Court has referred the said decision to Larger Bench, a copy of which is produced as Ext.P2. In the circumstances and in WP(C) No. 11911/2008 -2- view of the stay granted by the Supreme Court in petitioner's own case against demand issued for earlier years against recovery of differential tax, I direct the 3rd respondent to withhold penalty proceedings for two months, if petitioner has paid tax on 85% of the total sales turnover at 12.5%. However, if payment is not made as above, then penalty can be levied on short payment of tax below 12.5% on 85% of the total sales turnover. If petitioner has not made payment as stated above, petitioner can pay it within two weeks from now to avoid penalty.
(C.N.RAMACHANDRAN NAIR, JUDGE) H/O jg