9911796707
TMI Blog1994 (3) TMI 375X X X X Extracts X X X X X X X X Extracts X X X X ..... the writ petition is for the issue of a writ of prohibition restraining the respondents from recovering the sales tax at 40 per cent of the rental without adjudication by an independent authority or in the alternative to permit the petitioners to pay the tax due from them in six monthly instalments. 3.. When this writ petition came on for admission counsel for the petitioners submitted that they are not pressing the challenge to the provisions of the KGST Act and that they are confining the relief in the writ petition to the grant of instalment facility. I put to counsel for the petitioners whether the withdrawal of the challenge to the provisions of the Act was conditional on the instalment facility being granted, when counsel said that irrespective of whether the instalment facility was granted or not, the petitioners were not pressing the challenge to the provisions of the Act. The only prayer that therefore survives for consideration is that the petitioners may be permitted to pay the balance amount of tax due from them at the compounded rate in instalments. Needless to say the respondents represented by Sri T. Karunakaran Nambiar, Special Government Pleader for Taxes oppos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p before me for admission and interim orders thereafter, I granted stay following the Division Bench to ensure consistency in as much as it will not be fair for this Court to deny the benefit of stay when the appellants in the writ appeals mentioned earlier had derived the benefit of instalment payment. But the Special Government Pleader Sri. T. Karunakaran Nambiar very vehemently opposed for the passing of an order of stay with the submission that the State had not agreed to the instalment benefit and that they were filing applications for review on the ground that the Bench had not been apprised of the earlier judgment of another Bench in Writ Appeal No. 1668 of 1993 (V.S. Jyothish Kumar v. State of Kerala). Accordingly I granted stay for two weeks, leaving the matter to be dealt with later in the light of any subsequent order of the Division Bench in the review petitions which the State had filed or proposed to file. The Division Bench thereafter heard the review petitions and passed an order on February 24, 1994 allowing the review and dismissing the writ appeals before them as not maintainable. In passing the said order, the Division Bench stated the reasons why they were indu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts. I put a question whether such a plea is maintainable and under what provision of law or legal principle such a direction could be given to the State to recover amounts admittedly due to them in instalments thereby waiving the rights which they have under the provisions of KGST Act. Counsel submitted that he founds his claim for the benefit of instalment payment under the judgment in the review petitions in the writ appeals above mentioned which according to him recognises a right in the petitioners to claim instalment benefit for payment of tax admittedly due. Counsel relies on the various reasons which the Division Bench has given as those which prompted them to pass the first order of February 10, 1994 and he also lays stress on the last sentence in the judgment by which the Division Bench observed that it was open to the appellants to pray for instalment facility in the writ petition itself. According to counsel, the Division Bench has laid down the law of the land and that it has got to be followed by granting instalment facility to the petitioners. 10.. Sri. T. Karunakaran Nambiar appearing for the respondents vehemently opposes this prayer stating that the whole thing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... FB]. This being the legal position, on which there could be no dispute, the petitioners cannot insist that as a matter of right, they are entitled to an order from this Court for payment of the amount of tax due in instalments as suggested by them. They have already been granted the benefit of instalments under section 7(15) and it is not for this Court to direct that the amount shall be collected in a different system of instalments. 12.. Petitioners claim as mentioned earlier is based only on the decision of the Division Bench and not on any provision of law. The decision of the Division Bench does not really conclude any issue in favour of the petitioners. The Division Bench has only stated the reasons why they passed the earlier order on February 10, 1994 granting instalments. Evidently there was no serious opposition at that stage to the order which they passed. It was only later when the Government realised the seriousness of the matter that they came up with the review petitions and the Division Bench vacated the previous order. The fact that there was no serious opposition is evident from the fact that the Division Bench does not even appear to have been apprised of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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