Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH FRIDAY, THE 20TH DAY OF OCTOBER 2023 / 28TH ASWINA, 1945 WP(C) NO. 189 OF 2022 PETITIONER:
RAMADA PUNNAMADA, ALAPPUZHA-685612 REPRESENTED BY ITS (AUTHORIZED SIGNATORY) BONNY ALOYSIUS.
BY ADVS.
P.N.DAMODARAN NAMBOODIRI HRITHWIK D. NAMBOOTHIRI RESPONDENTS:
1 THE STATE TAX OFFICER SQUAD NO.1, STATE GST DEPARTMENT, ALAPPUZHA-688 001.
2 THE JOINT COMMISSIONER (APPEALS)-II STATE GST DEPARTMENT, ASHRAMAM, KOLLAM-691 002.
3 THE DEPUTY COMMISSIONER (INT) STATE GST DEPARTMENT, 4TH FLOOR, CIVIL STATION, ANNEXE BUILDING, EAST OF TOWN SQUARE, ALAPPUZHA-688 013.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 189 OF 2022 2 DINESH KUMAR SINGH, J.
-------------------------------------------- WP(C) NO. 189 OF 2022 -------------------------------------------- Dated this the 20th day of October, 2023 J U D G M E N T 1.
The present writ petition has been filed by the petitioner impugning Ext.P4, P4A & P4B penalty orders passed by the 1st respondent.
Penalty was imposed under Section 17(A) of Kerala Tax on Luxuries Act, 1976 and a penalty of Rs.1,13,70,000/- being the double the amount of tax sought to be evaded was imposed on the petitioner for the assessment year 2015-16 in Ext.P1 order. Similarly, in the year 2016-17, penalty of Rs.1,09,50,000/- was imposed and for the assessment year 2017-18 penalty of Rs.22,39,772/- was imposed.
2.
The petitioner challenged these penalty orders before the Joint Commissioner (Appeals), Kerala State GST Department, Kollam. The
WP(C) NO. 189 OF 2022 3 appellate authority by Ext.P2 common order set aside the penalty orders on the ground that the suppression and omission must be clearly disclosed from the materials available and there should be evidence of the amount sought to be suppressed from the turnover. It is also stated that the intelligence officer could not clearly prove such a suppression or omission. However, it is said that any loss caused to the state exchequer based on the material that relied on by the intelligence officer, the same should be compensated by resorting to best judgment assessment. These penalty orders were set aside without remanding the matter back to the assessing authority for passing a fresh order.
3.
The petitioner was again issued notices under Section 17 (A) by the assessing authority proposing imposition of penalty and by Ext.P4 and Pxt.P4A orders, the penalty which had been earlier
WP(C) NO. 189 OF 2022 4 imposed and was set aside by Ext.P2 order and has again been levied.
4.
Smt. Jasmine M.M, learned Government Pleader does not dispute that the appellate authority did not remand the matter back to the assessing authority for passing a fresh order.
5.
In fact, the petitioner’s appeal was allowed by setting aside Exts.P1, P1A and P1B penalty orders. Once the penalty orders were set aside, the assessing authority again assessed the penalty and therefore, notices issued in Ext.P3 as well as in orders passed in Ext.P4 series, are without jurisdiction.
6.
Thus, the present writ petition is allowed and the impugned orders are set aside.
Sd/- DINESH KUMAR SINGH JUDGE rpr
WP(C) NO. 189 OF 2022 5 APPENDIX OF WP(C) 189/2022 PETITIONER’S EXHIBITS Exhibit P1 TRUE COPY OF THE PENALTY ORDER NO.CR.1/2018- 19(15-16) DATED 22.04.2019 FOR THE YEAR 2015-16 U/S .17 (A) OF KERALA TAX ON LUXURIES ACT ISSUED BY THE 1ST RESPONDENT.
Exhibit P1A TRUE COPY OF THE PENALTY ORDER NO.CR.1/2018- 19(2016-17) DATED 22.04.2019 FOR THE YEAR 2016-17 U/S .17 (A) OF KERALA TAX ON LUXURIES ACT ISSUED BY THE 1ST RESPONDENT.
Exhibit P1B TRUE COPY OF THE PENALTY ORDER NO.CR.1/2018- 19(2017-18) DATED 22.04.2019 FOR THE YEAR 2017-18 U/S .17 (A) OF KERALA TAX ON LUXURIES ACT ISSUED BY THE 1ST RESPONDENT.
Exhibit P2 TRUE COPY OF THE COMMON APPELLATE ORDER NO.KLT (ALPY).86/19,87/19 & 88/19 DATED 30.11.2020 FOR THE YEARS 2015-16,2016-17 & 2017-18 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.
Exhibit P3 TRUE COPY OF THE NOTICE NO,CR.1/2018-19 (2015- 16), FOR THE YEAR 2015-16 DATED 08.11.2021 U/S.17(A) OF KERALA TAX ON LUXURIES ACT ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.
Exhibit P3 A TRUE COPY OF THE NOTICE NO,CR.1/2018-19 (2016- 17), FOR THE YEAR 2016-17 DATED 08.11.2021 U/S.17(A) OF KERALA TAX ON LUXURIES ACT ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.
Exhibit P3 B TRUE COPY OF THE NOTICE NO.CR.1/2018-19 (2017- 18), FOR THE YEAR 2017-18 DATED 08.11.2021 U/S.17(A) OF KERALA TAX ON LUXURIES ACT ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.
Exhibit P4 TRUE COPY OF THE ORDER DATED 23.11.2021 BEARING NO.CR.1/2018-19 (2015-16) FOR THE YEAR 2015-16, ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.
Exhibit P4 A TRUE COPY OF THE ORDER DATED 23.11.2021 BEARING NO.CR.1/2018-19 (2016-17) FOR THE YEAR 2016-17, ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.
Exhibit P4 B TRUE COPY OF THE ORDER DATED 23.11.2021 BEARING NO.CR.1/2018-19 (2017-18) FOR THE YEAR 2017-18, ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.