TaxTMI 
TaxTMI 
2013 (3) TMI 831
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.... that Exts.P4 to P7 assessment orders are non est and void. Therefore no demand is to be made pursuant to the same. It is the contention of the petitioner that the assessment originally made was set aside by the Commissioner and the matter was remitted back to the assessing authority for fresh disposal. The assessing authority was directed to finalise the assessments for the years 1994-95 to 1997-98 within three months from the date of receipt of the order. 4. The main purpose of the remand and fresh consideration was to enable the petitioner to produce evidence for the department materials supplied. According to the petitioner, after the remand, the assessing authority issued notice for hearing. The petitioner submitted an application seeking adjournment stating that they intend to file an appeal before the High Court under Section 40 of the Kerala General Sales Tax Act. The petitioner preferred appeals on 26/03/2003. The appeal was admitted on 28/03/2003. An interim stay was granted staying further proceedings pursuant to the order passed by the Commissioner of Commercial Taxes by this court on the same day. Ext.P2 is the said interim order. The appeal was disposed of by judgme....
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.... quarrying. These writ petitions were disposed of permitting the petitioner to take up the contentions in the present writ petition as per judgment dated 06/03/2013. 10. Counter affidavit is filed by the respondent inter alia contending that the demand made by way of Exts.P4 to P7 assessment orders were genuine and in so far as the petitioner had not taken any steps to challenge the said assessment orders by filing an appeal, the said demand had become final. In regard to the demand made by the Harbour Engineering Department, it is contended that the assessment had been made on the basis of the provisions of the contract and the petitioner is liable to compensate the loss suffered by the department by committing breach of contract. In regard to the claim for royalty, it is submitted that the royalty is payable as per the provisions of the Mines and Mineral Concession Rules, as the petitioner had quarried granite from private property which is not exempted from the provisions of the Act. According to the petitioner, their representation is pending with the Government wherein the petitioner had sought for exemption. 11. Respondents also have taken a contention that the writ petit....
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.... the time factor after the disposal of the Appeals. The judgment was passed by a Division Bench of this Court on 26/07/2007 giving an opportunity to the petitioner to produce all documents before the assessing authority. Apparently this was based on an assumption that assessment orders were not passed. But, still, the petitioner kept quite. No documents were produced probably knowing about the fact that the assessment orders were already passed. But the question is why the petitioner had waited for another three years and had approached this Court only when revenue recovery proceedings were initiated. Apparently there is delay and laches on the part of the petitioner. The question is whether this writ petition could be thrown out on the ground of delay and laches. Learned counsel for the petitioner relies upon the judgment of the Supreme Court in Shankara Cooperative Housing Society Limited [(2011) 5 SCC 607], paragraph 54 is relevant which reads as under: 54. The relevant considerations, in determining whether delay or laches should be put against a person who approaches the writ court under Article 226 of the Constitution is now well settled. They are: (1) There is no invio....
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.... State Mineral Development Corporation v. Encon Builders (I)(P) Ltd, ((2003) 7 SCC 418) and the decision in P.V.Paily v. State of Kerala [2000(3) KLT 343 = AIR 2000 Ker.268). We also agree with the contention that settled dues to the notified Government Company can be realised through revenue recovery proceedings as if it is a Government due and the dues should be an agreed or adjudicated amount. Dues cannot be demanded and recovered by revenue recovery proceedings according to whims and fancies of the parties. In this case, already a claim was made by the petitioner. On its rejection by the Managing Director, the matter is pending in the civil court and claim by the KSIDC is not adjudicated. When the legality of termination itself is a question pending adjudication in a civil court, the Chief Engineer cannot make a demand and threaten the petitioner with revenue recovery proceedings. Now, we will consider the contention of the respondents based upon Clause 34 of Ext.P2 contract that Managing Director of KSIDC, one of the contesting parties, can determine the amount without adjudication by a third party even when breach of contract is not admitted. In this case, Ext.P1w order is no....
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....State, even though a party to the contract will be well within his rights, in assessing the damages occasioned by the breach in view of the specific terms of clause 12". A Division Bench of this Court earlier, two decades ago, in K.A.Ponnappan v. The D.F.O.Chalakudy and others (1984 KLJ 853) held that proceedings under the Revenue Recovery Act can be initiated only after determination of the amount even if it is a Government due. The Division Bench held as follows: "In case the contract conceives of determination otherwise than through a civil suit such as arbitration, that may be the mode of determination. Normally the civil court will have to determine whether any damages is due and if so what the quantum is. Only on such determination of the amount it could be said to be due and then the Revenue Recovery Act can be put into action. Enforcement by resort to the Revenue Recovery Act when there is no amount due is not permissible. Amount would not be due merely because of breach. Breach gives rise to a right to sue. When that right is exercised and as a consequence it is found on adjudication that amount is due, that would be recoverable. This aspect the learned Single Judge h....