Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH WEDNESDAY, THE 27TH DAY OF MARCH 2024 / 7TH CHAITHRA, 1946 WP(C) NO. 915 OF 2024 PETITIONER:
M/S. N.R. PATEL & CO.
AGED 45 YEARS PRESENTLY NRP PROJECTS (P) LTD., DESABANDHU PLAZA, 47, WHITES ROAD, CHENNAI, TAMILNADU, REPRESENTED BY AUTHORISED SIGNATORY, A,S,RAJESH, ASSISTANT GENERAL MANAGER - FINANCE, PIN - 600014 BY ADVS.
SIVANKUTTY S.
S.SURESH BABU (CHERUNNIYOOR) VANDANA RAVI RESPONDENTS:
1 THE ASSISTANT COMMISSIONER, STATE GST DEPARTMENT, TAX PAYER SERVICE CIRCLE, KAZHAKKOOTTAM, TAX TOWER, KARAMANA, THIRUVANANTHAPURAM, PIN - 695002 2 THE JOINT COMMISSIONER, TAX PAYER SERVICE, STATE GST DEPARTMENT, TAX TOWER,KARAMANA, THIRUVANANTHAPURAM, PIN - 695002 3 THE COMMISSIONER, STATE GST DEPARTMENT, TAX TOWER, KARAMANA, THIRUVANANTHAPURAM, PIN - 695002 SMT. JASMIN M.M.-GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P(C) No.915 of 2024 2 JUDGMENT Dated this the 27th day of March, 2024 The petitioner is a registered dealer under the provisions of the Kerala Value Added Tax Act, 2003, and is engaged in execution of contract awarded by the Bharat Petroleum Company Ltd. The assessment for the years from 2008 - 2009 to 2011-2012 were completed and the amount found to be paid in excess for the years 2008-2009 to 2010-2011 were carry forwarded to the year 2011-2012. An amount of Rs.
20,11,109/- was found to have been paid in excess as per the order dated 22.08.2014 for the assessment year 2011-12. The assessee has filed a representation dated 13.01.2015 before the assessing authority for refund of the said amount and thereafter, a writ petition was filed before this Court, W.P(C.) No.7071/2015 seeking a direction to sanction refund amount with interest. This Court vide judgment dated 31.03.2015, disposed of the said writ petition, with direction to the assessing authority to consider and pass orders on the
W.P(C) No.915 of 2024 3 representation of the petitioner dated 13.01.2015 within a period of two months from the date of the order, this Court also directed the 1st respondent to compute the total refund amount due to the petitioner with upto-date interest as provided under Section 89 of the KVAT Act.
2. During the pendency of the said writ petition, a notice dated 09.04.2015, under Section 25 of the KVAT Act, was served on the petitioner company, proposing the complete assessment for the assessment year 2012- 2013. A notice under Section 95 was also issued on 26.06.2015. Even though the notices were served on the petitioner, no response came from the petitioner to these notices. Later on some other turnover, suppression was noticed and revised notice dated 29.07.2015 was issued to the petitioner. Despite the direction issued by the High Court, the petitioner neither filed a reply nor produced the books of account in pursuance to the notices issued to the petitioner. The
W.P(C) No.915 of 2024 4 petitioner also did not file annual returns of statements before the assessing authority.
3. As the petitioner did not produce the documents and not filed reply to the notice, an exparte order of the assessment for the year 2012-2013 was passed, in which it was held that an amount of Rs.19,47,790/- was found due after adjusting the refund amount of Rs.23,52,998/- for the year 2011-2012. Since the amount to be refunded for the year 2011-2012 with interest was given credit for the year 2012-2013, the direction of the High Court in its judgment dated 31.03.2015 was complied with in respect of the assessment year 2011-2012. Later on, it was found that some mistake in calculating the interest on refund had occurred for the assessment year 2011-12 and therefore, the order for the assessment year 2012-13 was rectified by which an amount of Rs.21,51,887/- was given credit and balance amount of Rs.22,18,689/- was found due for the year 2012-13 as per the rectified order dated 16.10.2015.
W.P(C) No.915 of 2024 5 4. In the meantime, Deputy Commissioner Thiruvananthapuram
suo-motu
proposed
the cancellation of the assessment order for the year 2011- 12 on finding certain irregularities in the assessment order. Thereafter, the assessment order was completed and the rectified assessment order was passed on 25.11.2016 creating a demand of Rs.65,79,113/- and cess of Rs.65,611/-.
5. The petitioner thereafter filed W.P(C) No.31926/2016 and Contempt Case No.67/2016 which were disposed of as per Ext.P12 judgment. On consideration of the affidavit filed on behalf of the alleged contemnor, the contempt and writ petitions were closed by the judgment dated 18.07.2018 with the observation “If at all the petitioner has any further grievance regarding the computation of interest or the manner in which the adjustments have been made, it would always be open for the petitioner to challenge the same in appropriate proceedings”.
W.P(C) No.915 of 2024 6 6. In view of the aforesaid observation made by this Court in its judgment dated 18.07.2018, the petitioner filed appeal against the revised assessment order. The appellate authority has modified the assessment order vide order dated 20.06.2022 for the Assessment year 2011-12 by Ext.P15 and P16 separate orders.
Subsequently, the refund has been ordered as Ext.P17 granting an amount of Rs.90,29,252/-. On further verification, it came to light that there was some error in the calculation of the interest portion. Hence, Ext.P18 notice was issued under Section 56 on 29.07.2023. After hearing the petitioner, a fresh order on Ext.P20 was issued on 21.01.2023 directing the assessing authority to re-work the interest applicable as per the Statute. Subsequently, after issuing Ext.P21 notice and considering the aforesaid reply filed by the petitioner in Ext.P23 order dated 04.09.2023 was issued and an order of refund was limited to Rs.49,96,500/-.
W.P(C) No.915 of 2024 7 7. If the petitioner is aggrieved by the said order, the remedy lies elsewhere under the Statute itself. This Court cannot enter into the factual dispute as it is for the petitioner to approach the Appellate Authority against the said order if he is not satisfied with the order passed for refund in the impugned order. This court is not an appellate authority under the provisions of the KGST Act to examine the merit of the assessment/refund order. The appropriate remedy would be to approach the authority under the Statute itself and not invoke the public law remedy by filing the writ petition.
Thus, I find no substance in this writ petition which is hereby dismissed. If the petitioner files the appeal, the time consumed in prosecuting the writ petition shall be taken into consideration while considering the application for condoning the delay.
Sd/-
DINESH KUMAR SINGH JUDGE AP
W.P(C) No.915 of 2024 8 APPENDIX OF WP(C) 915/2024 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ASSESSMENT ORDER NO.
32011397864 DATED 22-8-2014 FOR 2008-09, ISSUED BY THE 1ST RESPONDENT.
Exhibit P1(a) TRUE COPY OF THE ASSESSMENT ORDER NO.
32011397864 DATED 22-8-2014 FOR 2009-10, ISSUED BY THE 1ST RESPONDENT.
Exhibit P1(b) TRUE COPY OF THE ASSESSMENT ORDER NO.
32011397864 DATED 23-8-2014 FOR 2010-11, ISSUED BY THE 1ST RESPONDENT.
Exhibit P1(c) TRUE COPY OF THE ASSESSMENT ORDER NO.
32011397864 DATED 22-8-2014 FOR 2008-09, ISSUED BY THE 1ST RESPONDENT.
Exhibit P2 TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WPC NO.7071/2015 DATED 31-3-2015.
Exhibit P3 TRUE COPY OF REFUND PROCEEDINGS NO.
32011397864 DATED 3-8-2015 OF ASSESSING AUTHORITY - 1ST RESPONDENT.
Exhibit P4 TRUE COPY OF THE ASSESSMENT ORDER NO.
32011397864 DATED 21-8-2015 OF THE ASSESSING AUTHORITY - 1ST RESPONDENT FOR 2012-13.
Exhibit P5 TRUE COPY OF THE RECTIFIED REFUND PROCEEDINGS NO. 32011397864/11-12 DATED 14- 9-2015
OF
ASSESSING
AUTHORITY
1ST RESPONDENT.
Exhibit P6 TRUE COPY OF THE RECTIFIED REFUND PROCEEDINGS NO. 32011397864/12-13 DATED 16- 10-2015 OF ASSESSING AUTHORITY 1ST RESPONDENT.
Exhibit P7 TRUE COPY OF THE REVISION ORDER NO.
B1.643/16 DATED 21-6-2016 OF THE DEPUTY COMMISSIONER, THIRUVANANTHAPURAM.
Exhibit P8 TRUE COPY OF THE REVISED ASSESSMENT ORDER NO.32011397864 DATED 25-11-2016 OF THE ASSESSING AUTHORITY - 1ST RESPONDENT FOR 2011-12.
Exhibit P9 TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN COC NO. 67 OF 2016 AND WPC 31926/2015 DATED 27-6-2018.
W.P(C) No.915 of 2024 9 Exhibit P10 TRUE COPY OF THE REFUND/ADJUSTMENT PROCEEDINGS NO. 32011397864/2011-12 DATED 5-7-2018 OF THE ASSESSING AUTHORITY-1ST RESPONDENT.
Exhibit P11 TRUE COPY OF THE REFUND/ADJUSTMENT PROCEEDINGS NO. 32011397864/2011-12 DATED 13-7-2018 OF THE 1ST RESPONDENT-ASSESSING AUTHORITY.
Exhibit P12 TRUE COPY OF THE JUDGMENT IN WPC NO.
31926/2015 DATED 18-7-2018 OF THIS HONOURABLE COURT.
Exhibit P13 TRUE COPY OF THE JUDGMENT IN W.A. NO.
2025/2018 DATED 8-2-2022 OF THIS HONOURABLE COURT.
Exhibit P14 TRUE COPY OF THE APPELLATE ORDER NO.
K.91/22 & K.92/22 DATED 20-6-2022 OF THE JOINT
COMMISSIONER
(APPEALS), THIRUVANANTHAPURAM.
Exhibit P15 TRUE COPY OF THE MODIFIED ASSESSMENT ORDER NO. 32011397864/2011-12 DATED 20-12-2022 OF THE ASSESSING AUTHORITY-1ST RESPONDENT.
Exhibit P16 TRUE COPY OF THE MODIFIED ASSESSMENT ORDER NO. 32011397864/2012-13 DATED 20-12-2022 OF THE ASSESSING AUTHORITY - 1ST RESPONDENT.
Exhibit P17 TRUE COPY OF THE REFUND ORDER NO.
32011397864/2012-13 DATED 4-1-2023 OF THE ASSESSING AUTHORITY - 1ST RESPONDENT.
Exhibit P17(a) TRUE COPY OF THE REFUND ORDER NO.
32011397864/2012-13 DATED 9-1-2023 OF THE ASSESSING AUTHORITY - 1ST RESPONDENT.
Exhibit P18 TRUE COPY OF THE SUO-MOTO REVISION NOTICE NO.B2. 32011397864 /SUO-MOTO/2023 DATED 29- 7-2023 OF THE JOINT COMMISSIONER - 2ND RESPONDENT.
Exhibit P19 TRUE COPY OF THE NOTES DATED 10-8-2023 FILED AGAINST EXT.P18 NOTICE OF THE 2ND RESPONDENT.
Exhibit P20 TRUE COPY OF THE SUO-MOTO REVISION ORDER NO.
JC.TPS/B2.32011397864/SUO-MOTO/2023 DATED 21-8-2023 OF THE 2ND RESPONDENT - JOINT COMMISSIONER.
Exhibit P21 TRUE
COPY
OF
THE
NOTICE
NO.
32011397864/2011-12 & 2012-13 DATED 26-8- 2023 U/S 89 OF THE ASSESSING AUTHORITY-1ST RESPONDENT.
Exhibit P22 TRUE COPY OF THE WRITTEN OBJECTIONS DATED
W.P(C) No.915 of 2024 10 2-9-2023 FILED BY THE PETITIONER AGAINST EXT.P21 NOTICE OF THE ASSESSING AUTHORITY.
Exhibit P23 TRUE COPY OF THE REVISED REFUND ORDER NO.
TPSC 32011397864/12-13/KZTM 2023 DATED 4-9- 2023 OF THE ASSESSING AUTHORITY-1ST RESPONDENT.
Exhibit 23(a) TRUE COPY OF THE REVISED REFUND ORDER NO.
TPSC 32011397864/12-13/KSTM DATED 5-9-2023 OF THE ASSESSING AUTHORITY.
RESPONDENT EXHIBITS Exhibit R2 (a) True copy of the notice dated 09.04.2015 Exhibit R2 (b) True copy of the notice dated 26.06.2015 Exhibit R2 (c) True copy of the notice dated 29.07.2015