Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN WEDNESDAY, THE 7TH DAY OF JUNE 2023 / 17TH JYAISHTA, 1945 WP(C) NO. 9595 OF 2014 PETITIONER:
M/S K.H. FLOORINGS MAIN ROAD, PATTAMBI, PALAKKAD DISTRICT, REPRESENTED BY K.H. ABDUL GAFOOR, MANAGING PARTNER.
BY ADVS.
SRI.HARISANKAR V. MENON SMT.MEERA V.MENON RESPONDENTS:
1 SALES TAX INSPECTOR SALES TAX CHECK POST, WALAYAR-678624.
2 THE COMMERCIAL TAX OFFICER ENQUIRY .
SALES TAX COMPLEX, PALAKKAD-678001.
3 COMMERCIAL TAX OFFICER(ADMINISTRATION), COMMERCIAL TAX CHECK POST, WALAYAR-678624.
SRI.SAYED MURTHALA THANGAL-GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO.9595 OF 2014 2 JUDGMENT Dated this the 7th day of June, 2023 This writ petition is filed seeking the following prayer:
“(i) To direct the respondents to trace out the files leading to Ext.P2 and complete the enquiry at the earliest by the issue of a writ of mandamus or such other writ or order or direction.” 2.
Heard the learned counsel for the petitioner and the learned Government Pleader.
3.
It is submitted that the 1st respondent had collected security deposit amounting to Rs.77,339/- from the petitioner in 2001 on the ground that the KGST registration of the petitioner stood cancelled. It is submitted that the cancellation of the registration was set aside by the Sales Tax Appellate Tribunal by Ext.P3 order and the security deposit is therefore liable to be refunded. This Court had directed the enquiry to be completed by Ext.P5 judgment. However, it is submitted that, on the ground that considerable time has passed and that the records and files are not traceable, no steps are taken to complete the enquiry or to refund the amounts.
WP(C) NO.9595 OF 2014 3 4.
Pursuant to specific direction issued by this Court, a statement has been placed on record by the 2nd respondent on 15.02.2023. It is stated as follows:
“2. That, consequent to the roll out of GST, all the commercial tax check posts ceased to exist with effect from 01.07.2017. Thereafter, the entire files belonging to the erstwhile CTCP Walayar (except those related to pay and allowances of the employees) were entrusted with the Inspecting Assistant Commissioner, Palakkad, as per the direction of CCT, Thiruvananthapuram.
3. That, in the instant case, as the same originated in 2001, i.e., during the KGST regime (the Kerala General Sales Tax Act, 1963), the file was supposed to pass on to then Sales Tax Officer, (Enquiry) Palakkad. [Sales Tax Officer, (Enquiry) was subsequently re-named as Commercial Tax Officer (Enquiry) in the advent of KVAT Act, 2003]. The post of Commercial Tax Officer (Enquiry) is now abolished as part of the re-organization of the department with effect from 10.01.2023.” It is further submitted that the office of the 2nd respondent had made earnest efforts to trace out the file from the office of the former Commercial Tax Officer (Enquiry), Palakkad. But, the files could not be traced out. It is further stated that the enquiry can be completed, if this Court permits the reconstitution of the lost files with copies available with the petitioner and to conduct an enquiry under sub section 4 of Section 29(A) of KGST Act, 1963, by appointing an
WP(C) NO.9595 OF 2014 4 officer not below the rank of the State Tax Officer under the jurisdiction of the 2nd respondent.
5.
Having considered the contentions as well as the statement filed on behalf of the 2nd respondent, this writ petition is disposed of with a direction to the 2nd respondent to take appropriate steps to complete the enquiry by reconstituting the lost files with copies available in the Department or with the copies made available by the petitioner.
Necessary steps shall be taken within a period of three months from the date of receipt of a copy of this judgment.
This writ petition is ordered accordingly.
Sd/- ANU SIVARAMAN JUDGE NP
WP(C) NO.9595 OF 2014 5 APPENDIX OF WP(C) 9595/2014 PETITIONER’S EXHIBITS EXHIBIT P1 COPY OF NOTICE ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P2 COPY OF RECEIPT ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P3 COPY OF ORDER ISSUED BY THE SALES TAX APPELLATE TRIBUNAL, PALAKKAD.
EXHIBIT P4 COPY OF REPRESENTATION FILED BY THE PETITIONER BEFORE THE INSPECTING ASST.
COMMISSIONER, WALAYAR.
EXHIBIT P5 COPY OF JUDGMENT IN WPC NO. 37167/2007 OF THIS HON'BLE COURT.
EXHIBIT P6 COPY OF LETTER SENT BY THE 3RD RESPONDENT.
RESPONDENTS’ EXHIBITS: NIL