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2015 DIGILAW 75 (KER)

Hykon Electronic Systems v. State of Kerala

2015-01-23

ANTONY DOMINIC

body2015
JUDGMENT : Antony Dominic, J. Heard the learned counsel for the petitioner and the learned Government Pleader appearing for the respondents. 2. Petitioner is a manufacturer of UPS Systems. They filed returns classifying the UPS under Sl.No.69(27) of the third schedule to the KVAT Act. However, by Ext.P1 series of orders, assessment for the period 2005-06 to November 2011 was completed treating the UPS as falling under Sl. No.33(5) of SRO 82/2006 taxable at 12.5%. By Ext.P6 series of orders, these assessment orders were confirmed by the appellate authority. 3. In the case of a similar assessee, assessment was completed and appeals were rejected. However, the Tribunal considered the further appeal filed and remanded the matter to the assessing authority and the assessing authority is seized of the matter. 4. In this writ petition, relying on Ext.P7 clarification issued by the Commissioner exercising power under Section 94 of the KVAT Act, petitioner says that the Commissioner has already clarified that the equipment in question is a UPS falling in Sl.No.69/27 of the third schedule instead of Sl.No.33 (5) of the SRO 82/2006. It is also stated that the Commissioner has relied on a certificate issued by the Keltron and a similar certificate has been obtained by the petitioner, a copy of which is Ext.P9. Therefore, the petitioner says that in the light of Exts.P7 and P9, matter requires to be reconsidered. 5. I have gone through Exts.P7 and P9. A reading of Exts.P7 and P9, gives me a prima facie impression that there is force in what the petitioner contends and that if the issue is reconsidered in the light of those documents, it is likely that the assessing authority might accept the case of the petitioner. Since a prima facie case is made out by the petitioner, I do not think that any useful purpose will be served by relegating the petitioner to pursue the appellate remedy that is available against Ext.P6 order whereby Ext.P1 series of assessment orders were confirmed. 6. Accordingly, I dispose of this writ petition quashing Exts.P1 series and P6 orders and directing that the petitioner shall appear before the 3rd respondent, produce materials including Exts.P7 and P9 before 31.1.2013. If the petitioner produces materials as above, they will be heard and fresh assessment orders concerning the years 2005-06 to November 2011 covered by Ext.P1 series, will be passed. If the petitioner produces materials as above, they will be heard and fresh assessment orders concerning the years 2005-06 to November 2011 covered by Ext.P1 series, will be passed. Assessing authority shall pass such orders as expeditiously as possible, at any rate, within four weeks thereafter. It is made clear that if the petitioner does not appear before the assessing authority and produce the documents as directed above, this judgment will stand recalled and Exts.P1 and P6 will stand revived. Petitioner will produce a copy of this judgment before the 3rd respondent for compliance.