Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH THURSDAY, THE 18TH DAY OF JANUARY 2024 / 28TH POUSHA, 1945 WP(C) NO. 9011 OF 2023 PETITIONER/S:
AJI THOMAS, AGED 46 YEARS M/S. BLUE SEVEN STAR CONSTRUCTION, PROPRIETOR, 4/804-A, KOTTIYAM, KOLLAM, PIN - 691571 BY ADVS.
S.ARUN RAJ ARJUN S.RAJ C.T.SUJA RESPONDENT/S:
1 THE STATE TAX OFFICER, WORKS CONTRACT, STATE GOODS AND SERVICE TAX DEPARTMENT, BAPUJI NAGAR, ASHRAM, KOLLAM, PIN - 691002 2 COMMISSIONER OF STATE GOODS AND SERVICE TAX DEPARTMENT, GOVERNMENT OF KERALA, TAX TOWER, KILLIPALAM, KARAMANA P.O, THIRUVANANTHAPURAM, PIN - 695002 3 STATE OF KERALA, REPRESENTED BY THE SECRETARY, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM, 695001 BY ADV JOSE JOSEPH, SC, INCOME TAX DEPARTMENT, KERALA OTHER PRESENT:
JASMINE M.M.-GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 9011 OF 2023 2 JUDGMENT Dated this the 18th day of January, 2024 The present writ petition has been filed impugning the assessment order dated 29.02.2020, passed by the State Tax Officer, State Goods and Services Tax Department, Works Contract, Kollam, in respect of the assessment year 2016-2017 under Section 25(1) of the Kerala Value Added Tax Act, 2003 (‘the KVAT Act’ for short).
2.The Intelligence Officer, Squad No.1, Commercial Taxes, Kollam, after conducting enquiry under Section 47(6) of the KVAT Act, was of the opinion had M/s Blue Seven Star Constructions Pvt Ltd, proprietary concern of the petitioner had suppressed a turn over and evaded payment of tax amount. He forwarded the report to the State Tax Officer for further proceedings. The petitioner was issued notice with Form 17 on 16.11.2018 and hereafter under Section 25(1) of the KVAT Act, 2003, dated 22.01.2020.
3.Despite service of notice, the dealer did not produce the books of account nor filed any reply to the notices. As the petitioner was not co-operating and coming forward with relevant record for completing the assessment proceedings under Section 25 of the KVAT, a letter was sent by the State Tax Officer to the Income Tax Authorities to provide the Income Tax return filed by the petitioner for the assessment year 2017-2018 corresponding to financial year 2016-2017. In response to
WP(C) NO. 9011 OF 2023 3 the said letter written by the State Tax Officer, the Income Tax Authorities handed over the copy of the Income Tax return which would reveal an amount of Rs.1,65,40,000/- received as sale and services in the P & L account for the financial year 2016-2017. Considering the said evidence of sale and services, assessment under Section 25(1) of the KVAT was proposed at Rs.1,36,45,500/- (balance taxable turn over). The said proposed assessment order was given to the petitioner for requiring him to file objection if any, and an opportunity of being heard was also given. The petitioner did not file any reply and also did not avail the opportunity of being heard. Therefore, a presumption was drawn that petitioner did not have anything to object to the proposed assessment proceedings for the year 2016-2017, which was completed at balance taxable turn over of Rs. 1,36,45,500/- and tax was levied at 14.5%.
4. The petitioner has challenged this order before this court on the ground that only evidence collected by the State Tax Officer was the income tax return filed by M/s Blue Seven Star Constructions Pvt Ltd, which is the company of the petitioner and his wife. He further submits that the income tax return, should not have been the basis for completing the assessment under Section 25(1) of the KVAT Act. He therefore, submits that the manner in which the impugned assessment order has been passed is not correct and liable to be set aside.
5. On the other hand Adv. Jasmine M M, the learned Government Pleader has submitted that the petitioner was given ample opportunity
WP(C) NO. 9011 OF 2023 4 by issuing show cause notices as well as the proposed assessment order.
But the petitioner did not come forward. He never bothered to file a reply to the show cause notices and notices for producing the relevant records for completing the assessment. The petitioner was given enough opportunity but he did not avail the same. Thus, the petitioner cannot raise objection in respect of the assessment order before this court. If the petitioner is aggrieved by the assessment order, there is a remedy of filing the appeal under Section 55 of the KVAT Act. Instead of filing the statutory appeal, the petitioner has approached this court, the writ petition is therefore not maintainable. It is further submitted that the impugned order is neither without jurisdiction nor against the express provision of law, requiring an interference by this court in exercise of its limited jurisdiction under Article 227 of the Constitution of India.
6.I have considered the submissions and perused the writ petition and also the counter affidavit.
7.The assessment order would disclose that the petitioner was given notice for producing the relevant records to complete the assessment. The petitioner never bothered to file reply to the notices.
The proposed assessment order was also served on the petitioner requiring him to file objection, if any. The petitioner did not file any objection to the proposed assessment order and not appeared for the personal hearing granted by the assessing authority. I do not find the impugned order being without jurisdiction or against the express provision of the law. This court cannot examine the merit of the
WP(C) NO. 9011 OF 2023 5 impugned assessment order as this court does not exercise the appellate jurisdiction. While exercising the writ jurisdiction, this court has to consider whether the order passed by the authority is within jurisdiction or without jurisdiction or it is against the express provision of the law. Both the conditions are absent in this present case and therefore, I find no ground to grant any indulgence to the petitioner against the impugned assessment order.
Accordingly, the present writ petition is dismissed. However, the petitioner may avail any other remedy, as may be available to him, if he is so advised.
Sd/- DINESH KUMAR SINGH JUDGE SJ
WP(C) NO. 9011 OF 2023 6 APPENDIX OF WP(C) 9011/2023 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE LICENSE DATED 9/7/2018 ISSUED BY THE MAYYANAD GRAMA PANCHAYATH TO THE PETITIONER Exhibit P2 A TRUE COPY OF THE CERTIFICATE OF INCORPORATION OF THE PRIVATE LIMITED COMPANY:-M/S BLUE SEVEN STAR CONSTRUCTIONS PVT LTD Exhibit P3 TRUE COPY OF THE GST REGISTRATION CERTIFICATE OF THE BLUE SEVEN STAR CONSTRUCTIONS PVT LTD Exhibit P4 A TRUE COPY OF THE INCOME TAX RETURN FOR THE AY 2017-18 OF THE PRIVATE LIMITED COMPANY- M/S BLUE SEVEN STAR CONSTRUCTIONS PVT LTD ALONG WITH THE STATEMENT OF INCOME AND P& L ACCOUNT Exhibit P5 A TRUE COPY OF THE ASSESSMENT ORDER DATED 29-2-2020 PASSED BY THE 1ST RESPONDENT AGAINST THE PETITIONER FOR THE YEAR 2016- 17 EXHIBIT P6 A TRUE COPY OF THE INTERIM ORDER DATED 16-4-2021 ASSED BY THIS HONORABLE COURT IN WP (C) NO. 9952 OF 2021 EXHIBIT R1(A) TRUE COPY OF THE ACKNOWLEDGMENT CARD DATED 31.01.2020 EXHIBIT R1(B) TRUE COPY OF THE ACKNOWLEDGMENT CARD DATED 16.09.2020