Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH MONDAY, THE 18TH DAY OF SEPTEMBER 2023 / 27TH BHADRA, 1945 WP(C) NO. 29991 OF 2023 PETITIONER/S:
KALS BREWERIES PVT. LTD POOLANI, CHALAKUDY, THRISSUR REPRESENTED BY ITS AUTHORISED SIGNATORY, MR. T.S AJITH, PIN – 680 311.
BY ADVS.
ABRAHAM JOSEPH MARKOS SHARAD JOSEPH KODANTHARA ISAAC THOMAS ALEXANDER JOSEPH MARKOS P.G.CHANDAPILLAI ABRAHAM JOHN VITHAYATHIL AIBEL MATHEW SIBY RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695 001.
2 THE DEPUTY COMMISSIONER TAX PAYER SERVICES DIVISION, STATE GST DEPARTMENT, IRINJALAKUDA, PIN – 680 125.
SMT JASMINE M.M., GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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DINESH KUMAR SINGH, J.
--------------------------------------------------------- W.P.(C). No. 29991 of 2023
--------------------------------------------------------- Dated this the 18th day of September, 2023.
JUDGMENT The present writ petition has been filed impugning Exhibit P2 series of notices issued by the second respondent under Section 45A of the Kerala General Sales Tax Act, 1963 (‘Act, 1963’ for short) for imposition of penalty on the petitioner for the alleged payment of 5% on total turn over tax. Exhibit P4 notice in Form No.50 dated 13.06.2023 is also issued for finalisation of assessment.
2. Heard the learned Senior Counsel for the petitioner, Sri.
Joseph Kodianthara, assisted by Sri. John Vithayathil, and the learned Government Pleader Smt. Jasmine M.M appearing for the State.
3. The learned Senior Counsel further submits that the issue as to whether the petitioner is liable to pay any tax, interest and penalty would be determined only after the completion of the proceedings pursuant to Exhibit P4 notice, and before completing the said exercise, the issuance of Exhibit P2 series of notices under Section 45A of the Act, 1963 is illegal. He, therefore, submits that till the finalisation of the proceedings pursuant to Exhibit P4 notice, Exhibit P2 series of
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notices may be kept in abeyance.
4. On the other hand, the learned Government Pleader submits that two proceedings i.e., proceedings pursuant to Exhibit P2 series of notices and Exhibit P4 notice are initiated and if a dealer registered under the Act, 1963 violates the provisions of Section 45A of the Act, 1963, the penalty may be imposed. Exhibit P4 notice is in respect of determination of liability and for passing assessment order. She, therefore, submits that both Exhibit P2 series of notices and Exhibit P4 notice are issued for different purposes and there is no requirement for the assessing authority to await the outcome of the assessment proceedings before proceeding with the penalty proceedings issued under Section 45A of the Act, 1963.
5. I have evaluated the rival submissions made across the Bar.
6. Exhibit P2 series of notices have been issued for the alleged non payment of 5% on total turnover tax and the question whether the petitioner is liable to pay tax on turn over needs to be determined in the proceedings. The petitioner has already filed a reply to Exhibit P2 series of notices and Exhibit P4 notice. Therefore, it would be appropriate to direct the assessing authority to expedite the assessment proceedings.
7. Accordingly, the assessing authority is directed to finalise the
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proceedings within a period of two months. The petitioner shall co- operate for early completion of the assessment proceedings. After the finalisation of the proceedings, if the assessing authority is of the view that the proceedings are to be undertaken against the petitioner, the authority may proceed with Exhibit P2 series of notices. It is for the assessing authority to consider the applicability of Exhibit P1 notification regarding exemption from payment of turn over tax.
With the aforesaid direction, the present writ petition stands finally disposed of.
sd/- DINESH KUMAR SINGH, JUDGE.
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APPENDIX OF WP(C) 29991/2023 PETITIONER’S EXHIBITS:
Exhibit P1 TRUE COPY OF THE EXEMPTION NOTIFICATION G.O.(P) NO.152/2022/TAXES DATED 01.12.2022 ISSUED BY THE 1ST RESPONDENT Exhibit P2(a) TRUE COPY OF THE NOTICE UNDER SECTION 45A OF THE KGST ACT DATED 09.06.2023 FOR JANUARY 2023 ISSUED BY THE 2ND RESPONDENT Exhibit P2(b) TRUE COPY OF THE NOTICE UNDER SECTION 45A OF THE KGST ACT DATED 09.06.2023 FOR FEBRUARY 2023 ISSUED BY THE 2ND RESPONDENT Exhibit P2(c) TRUE COPY OF THE NOTICE UNDER SECTION 45A OF THE KGST ACT DATED 09.06.2023 FOR MARCH 2023 ISSUED BY THE 2ND RESPONDENT Exhibit P2(d) TRUE COPY OF THE NOTICE UNDER SECTION 45A OF THE KGST ACT DATED 09.06.2023 FOR APRIL 2023 ISSUED BY THE 2ND RESPONDENT Exhibit P3 TRUE COPY OF THE REPLY DATED 10.07.2023 TO EXHIBIT P2 SERIES NOTICES FILED BY THE PETITIONER BEFORE THE JOINT COMMISSIONER, THRISSUR AND COPY TO THE 2ND RESPONDENT Exhibit P4 TRUE COPY OF THE NOTICE IN FORM NO.50 DATED 13.06.2023 ISSUED BY THE 2ND RESPONDENT FOR THE YEAR 2022-2023 Exhibit P5 TRUE COPY OF JUDGMENT OF THIS HON'BLE COURT REPORTED IN 2015 (5) KHC 522 RESPONDENTS’ EXHIBITS: NIL True Copy PS To Judge.
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