Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS FRIDAY, THE 11TH DAY OF AUGUST 2023 / 20TH SRAVANA, 1945 WP(C) NO. 26303 OF 2023 PETITIONER:
M/S. SONA BUS BODY WORKS PERAMANGALAM, THRISSUR DISTRICT REPRESENTED BY ITS PROPRIETOR, N.I. JOSEPH.S/O. N. A. INASU, 56 YEARS, RESIDING AT NADIKKARA HOUSE, THALORE, THRISSUR DISTRICT-680 306, PIN - 680545 BY ADVS.
K.J.ABRAHAM NIKHIL JOHN AKHIL SHAJI RESPONDENT/S:
1 INTELLIGENCE OFFICER SQUAD NO. II, DEPARTMENT OF COMMERCIAL TAXES, POOTHOLE P.O, THRISSUR DISTRICT, PIN - 680004 2 THE FAST TRACK TEAM STATE GOODS AND SERVICES TAX DEPARTMENT, TAX COMPLEX, POTHOOLE P.O, THRISSUR DISTRICT. REPRESENTED THE BY JOINT COMMISSIONER, TAX PAYERS SERVICES, STATE GST.
DEPARTMENT, POOTHOLE, TRISSUR - 680 004.
3 THE COMMISSIONER OF STATE TAXES STATE GOODS AND SERVICES TAX DEPARTMENT, TAX TOWER, KILLIPALAM, KARAMANA P.O, THIRUVANANTHAPURAM DISTRICT., PIN - 659002 4 STATE OF KERALA FINANCE DEPARTMENT, SECRETARIATE,THIRUVANANTHAPURAM.
REPRESENTED BY FINANCE SECRETARY, PIN – 695001 SENIOR GOVERNMENT PLEADER SMT. THUSHARA JAMES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 26303 OF 2023 2 Dated this the 11th day of August, 2023 JUDGMENT The writ petition is filed to quash Exts.P11 and P12 orders passed by the respondents under Section 17 (D) of the Kerala General Sales Tax Act, 1963 ( in short ’the KGST Act’).
2. The petitioner has averred in the writ petition that, the petitioner is conducting a workshop for maintenance and patch work of the motor vehicles.
On 5.3.2004, the Intelligence Officer of Commercial Taxes, recovered certain documents from the petitioner’s premises pertaining to the transactions for the years 2000-01 and 2003-04. The first respondent concluded the penalty proceedings by passing Exts.P1 and P2 orders. It is alleged that the petitioner had undertook contract work for vehicle body building and the same is taxable at the schedule rate of tax @12%.
WP(C) NO. 26303 OF 2023 3 After the conclusion of the penalty proceedings, the files were transferred to the assessing authority to complete the assessment. During the interregnum period, the 4th respondent had passed Finance Act, 2007, whereby Section 17 (D) - ‘Fast Track method of completion of assessments’, was introduced w.e.f 01.04.2007. As per the said provision, the 3rd respondent clarified and directed the 2nd respondent to complete the assessment in a simplified manner. The 2nd respondent without complying with the new provision, arbitrarily demanded huge amount of tax and interest from the petitioner.
The petitioner challenged the proceedings before this Court in W.P.(C)No.530/2017. By Ext.P5 judgment, this Court directed the first respondent to re-consider the matter afresh, after affording the petitioner an opportunity of being heard. In compliance with Ext.P5 judgment, the 2nd respondent issued Exts.P6 and P7 notices, to complete the assessment. In response to the
WP(C) NO. 26303 OF 2023 4 said notices, the petitioner submitted Exts.P8 and P9 detailed replies, books of account and other connected documents. The petitioner was also personally heard.
To the shock of the petitioner, the second respondent completed the assessment for both the years, without considering the arguments and materials on record, by the impugned Exts.P11 and P12 orders. The petitioner has not admitted any taxable turnover before any authorities and has also not compounded the offence in lieu of Section 47, 45A or 29 A before the first respondent. Nonetheless, the second respondent has demanded an exorbitant amount of tax in Ext.P12 assessment order, which is illegal and arbitrary.
Exts.P11 and P12 are liable to be quashed. Hence, the writ petition.
3. Heard; Sri K.J. Abraham, the learned counsel appearing for the petitioner and Smt. Thushara James, the learned Senior Government Pleader appearing for
WP(C) NO. 26303 OF 2023 5 the respondents.
4. The petitioner’s principle contention in the writ petition is that second respondent has passed the impugned orders in violation of the principles of natural justice. In addition to the same, the petitioner also asserts that levy of interest for the period 2000-2001 is illegal and arbitrary and the assessment for the year 2003-2004 has been done without considering the reply submitted by the petitioner, which in turn in violation of Section 17 (D) of the KGST Act.
5. On an analysis of the pleadings and materials on record, it is seen that the petitioner had in the earlier round of litigation before this Court, which led to Ext.P5 judgment, contended that the petitioner was not afforded an opportunity of being heard.
6. Accepting the said contention, this Court directed the first respondent to re-consider the matter afresh, after affording the petitioner an opportunity of being
WP(C) NO. 26303 OF 2023 6 heard.
7. It is undisputed that the petitioner was permitted to produce the necessary materials and was afforded a full opportunity of being heard before the passing of Exts.P11 and P12 orders.
8. Section 17 (D) (5) of the KGST Act specifically provides that, if any person is aggrieved by an assessment order made under the Fast Track method, he shall within a period of 45 days prefer an appeal before the Sales Tax Appellate Authority. No such appeal shall be filed unless the dealer has paid the entire tax amount.
9. On a perusal of Exts.P11 and P12 orders, the pleadings and materials on record and after hearing the respective learned counsel, I do not find any extraordinary circumstances made out by the petitioner, compelling this Court to entertain the writ petition by exercising its plenary powers under Article 226 of the Constitution of India. In the light of the alternative
WP(C) NO. 26303 OF 2023 7 statutory remedy available to the petitioner, I am not inclined to entertain the writ petition.
Resultantly, without prejudice to the right of the petitioner to work out its statutory remedies, as provided under sub-section 5 of Section 17(D) of the KGST Act, the writ petition is dismissed.
SD/- rmm11/8/2023 C.S.DIAS, JUDGE
WP(C) NO. 26303 OF 2023 8 APPENDIX OF WP(C) 26303/2023 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE PENALTY ORDER NO.ITC/209/2003-04 (1)/2000-01 DATED 28.03.2014 PASSED BY THE 1ST RESPONDENT Exhibit P2 TRUE COPY OF THE PENALTY ORDER NO.ITC/209/2003-04(2)/2003-04 DATED 28.03.2014 PASSED BY THE 1ST RESPONDENT Exhibit P3 TRUE COPY OF THE ASSESSMENT NO.WC/2000- 01 DATED 20.12.2017 PASSED BY THE 2ND RESPONDENT FOR THE YEAR 2000-01 Exhibit P4 TRUE COPY OF THE ASSESSMENT NO.WC/2003- 04 DATED 21.12.2017 PASSED BY THE 2ND RESPONDENT FOR THE YEAR 2003-04 Exhibit P5 TRUE COPY OF THE JUDGMENT IN WP(C) NO.530 OF 2018 DATED 16.03.2023 PASSED BY THIS HON'BLE COURT.
Exhibit P6 TRUE COPY OF THE NOTICE NO.WC/2000-01 U/S.17D OF THE KGST ACT, 1963 DATED 22.05.2023 ISSUED BY THE 2ND RESPONDENT FOR THE YEAR 2000-01 Exhibit P7 TRUE COPY OF THE NOTICE NO.WC/2003-04 U/S.17D OF THE KGST ACT, 1963 DATED 22.05.2023 ISSUED BY THE 2ND RESPONDENT FOR THE YEAR 2003-04 Exhibit P8 TRUE COPY OF THE REPLY DATED 05.06.2023 SUBMITTED BEFORE THE 2ND RESPONDENT FOR THE YEAR 2000-01 Exhibit P9 TRUE COPY OF THE REPLY DATED 05.06.2023 SUBMITTED BEFORE THE 2ND RESPONDENT FOR THE YEAR 2003-04 Exhibit P 10 TRUE COPY OF THE HEARING NOTE DATED
WP(C) NO. 26303 OF 2023 9 20.06.2023 SUBMITTED BEFORE THE 2ND RESPONDENT Exhibit P11 TRUE COPY OF THE ASSESSMENT ORDER NO.WC/2000-01 DATED 03.07.2023 PASSED BY THE 2ND RESPONDENT FOR THE YEAR 2000-01 Exhibit P 12 TRUE COPY OF THE ASSESSMENT ORDER NO.WC/2003-04 DATED 03.07.2023 PASSED BY THE 2ND RESPONDENT FOR THE YEAR 2003-04