Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH THURSDAY, THE 27TH DAY OF JULY 2023 / 5TH SRAVANA, 1945 WP(C) NO. 25471 OF 2018 PETITIONER:
M/S. I.T.I LTD., KANJIKODE WEST, PALAKAKD, REPRESENTED BY ITS FINANCE-IN-CHARGE, SHRI.SIVANANDAN.M.
BY ADVS.
SRI.T.M.SREEDHARAN (SR.)
SRI.R.BHASKARA KRISHNAN SRI.V.P.NARAYANAN RESPONDENTS:
1 THE ASSISTANT COMMISSIONER (ASSESSMENT) SPECIAL CIRCLE, COMMERCIAL TAXES,PALAKKAD-678 001.
2 THE DEPUTY COMMISSIONERAPPEALS-I COMMERCIAL TAXES, KOTTAYAM ON DEPUTATION TO ERNAKULAM PIN-686 001.
3 THE INSPECTING ASSISTANT COMMISSIONER COMMERCIAL TAXES, PALAKKAD-678 001.
BY ADV GOVERNMENT PLEADER RESHMITA RAMACHANDRAN(GP) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WPC No.25471 of 2018 2 JUDGMENT Dated this the 27th day of July, 2023 1.
Heard Smt.Nisha John, learned counsel for the petitioner as well as Ms.Reshmitha Ramachandran, learned Government Pleader appearing for the respondents.
2.
This writ petition has been filed under Article 226 of the Constitution of India for setting aside Exts.P2 and P3 which are recovery notices issued by respondent No.1 in respect of the tax assessed for the assessment year 2001-02 and 2002-03 respectively.
3.
The original assessment order Ext.P6 was passed on 22.07.2010 under Section 17(6) of Kerala GST Act, 1973, demanding payment of balance tax to the tune of Rs.22,47,548/-. The said assessment order was challenged in appeal by the
WPC No.25471 of 2018 3 petitioner/assessee. During the pendency of the appeal before the Deputy Commissioner, Commercial Taxes, rectification order was passed on 10.05.2013 rectifying the original assessment dated 22.07.2010. In that rectification order, the tax liability has been increased to Rs.28,03,711/-.
The appeal was finally disposed of on 28.06.2014 with following directions:
“Heard the contentions of the appellant and verified the records. The representative for the appellant submitted that the appellant had purchased batteries from various manufactures of batteries and had sold them to the telephone exchange by transfer of documents while the goods are in transit. The appellant had submitted ‘C’ Forms obtained from the customers and has also submitted E1 forms obtained from suppliers.
The representative submitted that the purchase was effected in 2001-2. but part of sale out of these purchase was made in 2002-03. the representative for the appellant submitted that the appellant had raised sale bill for the turnover of Rs.3,75,71,384.12 for the year 2002-03. it is prayed that the turnover may be assessed during
WPC No.25471 of 2018 4 the year of 2002-03 and delete the turnover from the assessment of 2001-02.
The appellant’s representative argued that the turnover is included in the total sales turnover of 2002-03 and assessed. The sales turnover cannot be assessed two times. The assessing authority is directed to verify the books of accounts of the appellant and ascertain in the year which the sales was effected. The appellant is directed to produce books of accounts 2001-02 and 2002-3 for verification before the assessing authority within two weeks from the date of receipt of this order. If the sales was effected during the year 2002-03 the assessing authority is directed to delete the turnover from the assessment of 2001-02. in the result of the appeal is modified as stated above.” 4.
Learned counsel for the petitioner submits that without passing a fresh assessment order as directed by the appellate authority, the impugned notice has been issued demanding the tax as assessed in the rectification order dated 10.05.2013. Learned counsel for the petitioner also submits that the appellate order was received
WPC No.25471 of 2018 5 on 17.04.2015 and soon after, on 21.09.2015 the petitioner wrote to the assessing authority bringing to the notice of the authority that the appellate authority has passed an order on appeal with direction to carry out re assessment after verifying the books of account of the petitioner for the assessment years 2001-02 and 2002-03. It is further contended that all the documents are with the assessing authority. However, if something is required to be submitted/produced by the petitioner, then the petitioner be informed to submit the same before the assessing authority.
5.
It is submitted that without passing a fresh order as directed by the appellate authority, the impugned notice had been issued. As the appellate authority had given a specific direction for passing a fresh order after verifying the books of accounts of the petitioner for the assessment
WPC No.25471 of 2018 6 years 2001-02, 2002-03 was incumbent upon the assessing authority to consider a fresh books of accounts of the petitioner and pass a fresh order.
6.
Without complying with the directions issued by the appellate authority, the impugned notice had been issued. I find, the issuance of the impugned notice contrary to the direction issued by the appellate authority, and, therefore, the same is set aside. The petitioner is directed to appear before the assessing authority within a period of one week from today and submit all the documents including the books of account for the assessment years 2001-02, 2002-03. The assessing authority is directed to pass a fresh assessment order after verifying the books of accounts in accordance with law. Thereafter, if the petitioner do not deposit the tax as may assessed
WPC No.25471 of 2018 7 by the assessing authority, necessary notice for per recovery should be issued.
7.
With the aforesaid directions, the writ petition stands disposed of.
Sd/- DINESH KUMAR SINGH JUDGE AP
WPC No.25471 of 2018 8 APPENDIX OF WP(C) 25471/2018 PETITIONER EXHIBITS EXHIBIT P1:
TRUE COPY OF RE-ASSESSMENT ORDER DATED 10.05.2013 FOR THE ASST.YEAR 2001-02 PASSED BY THE FIRST RESPONDENT UNDER THE CST ACT.
EXHIBIT P2:
TRUE COPY OF THE APPELLATE ORDER IN STA NO.315/2011 DATED 28.6.2014 PASSED BY THE 2ND RESPONDENT.
EXHIBITP3:
TRUE COPY OF LETTER DATED 21.4.2015 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT.
EXHIBIT P4:
TRUE COPY OF THE LETTER DATED 16.4.2018 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.
EXHIBIT P5:
TRUE COPY OF THE REVENUE RECEOVERY NOTICE IN FORM NO.1 AND 25 DATED 9.5.2018 ISSUED BY THE 3RD RESPONDENT.
Exhibit P6 TRUE COPY OF ORDER OF THE COMMERCIAL TAXES DEPARTMENT DATED 22.7.2010 FOR AY 2001-02 RESPONDENT EXHIBITS EXHIBIT R1 TRUE COPY OF THE ORIGINAL ASSESSMENT ORDER DATED 22.7.2010 FOR THE YEAR 2001-02 TRUE COPY P.A.TO JUDGE