Dream Appliances v. State Tax Officer - Kerala High Court, 24 March 2022

W.P.(C)No.28853 of 2021 1 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS THUR AY, THE 24TH DAY OF MARCH 2022 / 3RD CHAITHRA, 1944 WP(C) NO. 28853 OF 2021 PETITIONER/S: DREAM APPLIANCES PERUMPADANNA, NORTH PARAVUR 680 513 REPRESENTED BY ITS MANAGING PARTNER SRI JALAL M.M BY ADV M.K.HAJARA RESPONDENT/S: 1 STATE TAX OFFICER STATE GOODS AND SERVICE TAX DEPARTMENT, NORTH PARAVUR 680 513 2 DEPUTY COMMISSIONER STATE GOODS AND SERVICE TAXES, GST COMPLEX, MATTANCHERY 682 002 3 THE JOINT COMMISSIONER STATE GOODS AND SERVICES TAX DEPARTMENT, GST COMPLEX, MATTANCHERY 682 002 4 THE COMMISSIONER OF STATE TAX STATE GOODS AND SERVICE TAXES, TAX TOWER, KILLIPPALAM, KARAMANA P.O, THIRUVANANTHAPURAM 695 002 SR.GP DR.THUSHARA JAMES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.03.2022, THE COURT ON 24.03.2022 DELIVERED THE FOLLOWING:

W.P.(C)No.28853 of 2021 2 BECHU KURIAN THOMAS, J. ======================== W.P.(C)No.28853 of 2021 ------------------------------------------------ Dated this the 24th day of March, 2022 JUDGMENT Petitioner challenges the order of the Assessing Officer rejecting its application for refund of tax allegedly due to it for the assessment years 2010-11 and 2011-12. 2. Petitioner is a partnership firm engaged in the business of trading in electronic goods. It was an assessee under the erstwhile Kerala Value Added Tax Act,2003 (hereinafter referred to as ‘Act’ for short). For the assessment year 2010-11, petitioner had filed its returns, which is deemed to have been completed under Section 21 of the Act and the same was finalised as per order dated 19.06.2013. For the assessment year 2011-12, though notice was issued under Section 25 (1) of the Act, the Assessing Authority did not proceed further after the notice. In the meanwhile, petitioner alleges to have filed application in Form No.21CC for the years 2010-11 and 2011-12, claiming refund of Rs.63,321/- and

W.P.(C)No.28853 of 2021 3 Rs.1,58,201/- as refund due to it.

According to the petitioner, though repeated requests were made claiming refund in 2011 and 2012, refund was not granted under one pretext or the other. In the meantime, when the assessment for the year 2014-15 was completed and demand of tax was made, petitioner approached the Assessing Authority requesting to adjust the refunds due, for the prior assessment years against the dues of the year 2014-15. Even at that point of time, petitioner filed Form 21CC and further submitted request letters in 2016 and again in 2021. However, instead of issuing the refund due to the petitioner, an order was served on it rejecting the claim for refund for the reason that there was no evidence to show filing of application for refund. It was observed in the impugned order that there was no pending refund applications relating to the petitioner for the year 2010-11 and 2011-12. Aggrieved by the order rejecting the claim for refund, petitioner has preferred this writ petition, challenging Ext.P12 order.

I have heard Smt.M.K.Hajara, learned Counsel for the petitioner as well as Smt.M.M.Jasmin the learned Government

W.P.(C)No.28853 of 2021 4 Pleader.

Learned Government Pleader submitted that the impugned order is appealable under Section 55 of the Act and that the same contains several factual disputes, which cannot be decided by this Court, invoking the juri iction under Article 226 of the Constitution of India. Learned Government Pleader invited my attention to the specific findings in Ext.P12 and submitted that the order was issued after verifying the records produced and that unless the disputed facts are re appreciated by the Appellate Authority, a contrary finding cannot be entered into exercising the juri iction under Article 226 of the Constitution of India.

I have considered the rival contentions.

A perusal of the impugned order Ext.P12 shows that the Assessing Officer has considered the contention of the petitioner and entered into a finding after perusing the records produced. It is held in the impugned order that the delivery book produced by the petitioner and alleged to have been maintained by the accountant contains only a vague marking with ink as evidence of acknowledgment from the office of the

W.P.(C)No.28853 of 2021 5 State Tax Officer. It was after an appreciation of the facts and records that it was concluded that the delivery book did not contain any identifiable name, authenticating signature or even the designation of the official apart from absence of office seal. It is clear from a reading of the impugned order that the findings have been entered into by the 1st respondent after appreciating the facts and circumstances arising in the case. In order to arrive at a conclusion that the findings in Ext.P12 are incorrect, the same requires an appreciation of disputed facts.

As rightly contended by the learned Government Pleader, since disputed facts are required to be appreciated, normally the remedy is for the assessee to move the Appellate Authority rather than to approach this Court in exercise of its extra ordinary juri iction under Article 226 of the Constitution of India.

Though an alternative remedy is not a complete bar for this Court to exercise its juri iction under Article 226 of the Constitution of India, burden is upon the assessee to prove that circumstances exists warranting an interference by this Court. No such circumstances have been brought to my notice to

W.P.(C)No.28853 of 2021 6 warrant the exercise of juri iction under Article 226 of the Constitution of India. Since the contentions raised by the petitioner can effectively be considered by the Appellate Authority, it is only appropriate that petitioner pursues its statutory remedies rather than invoke the juri iction under Article 226 of the Constitution of India. Accordingly, reserving the liberty of the petitioner to pursue its statutory remedies, this writ petition is dismissed. It is clarified that petitioner will be entitled to exclude the period spent before this court in this writ petition from 14.12.2021 till the date of this judgment. BECHU KURIAN THOMAS

JUDGE jm/

W.P.(C)No.28853 of 2021 7 APPENDIX OF WP(C) 28853/2021 PETITIONER EXHIBITS Exhibit P1 AOF THE AUDIT REPORT DATED 20-10- 2011 FOR THE YEAR 2010-11 Exhibit P2 AOF THE ANNUAL RETURN FOR THE YEAR 2011-12 DATED 31-05-2012 Exhibit P3 AOF THE AUDIT REPORT DATED 13-12- 2014 FOR THE YEAR 2011-12 Exhibit P4 AOF THE FORM NO. 21 CC FILED BY THE PETITIONER FOR THE YEAR 2010-11 DATED 06-08- 2011 Exhibit P5 AOF THE FORM NO 21CC FILED BY THE PETITIONER FOR THE YEAR 2011-12 DATED 31-05- 2012 Exhibit P6 AOF THE ASSESSMENT ORDER PASSED FOR THE YEAR 2014-15 DATED 31-12-2018 Exhibit P7 AOF THE REQUEST LETTER DATED 03-06- 2016 SUBMITTED BEFORE THE 1ST RESPONDENT Exhibit P8 AOF THE REQUEST LETTER DATED 03-06- 2021 SUBMITTED BEFORE THE 1ST RESPONDENT Exhibit P9 AOF THE REQUEST LETTER DATED 26-08- 2021 SUBMITTED BEFORE THE 1ST RESPONDENT. Exhibit P10OF THE LOCAL DELIVERY BOOK SHOWING DATED 06-08-2011 SUBMITTED BEFORE THE 1ST RESPONDENT. Exhibit P11OF LOCAL DELIVERY BOOK SHOWING DATE 08-08-2012 SUBMITTED BEFORE THE 1ST RESPONDENT Exhibit P12 AOF THE PROCEEDINGS DATED 31-08-2021 ISSUED BY THE 1ST RESPONDENT Exhibit P13 AOF THE REQUEST LETTER DATED 08-11- 2021 SUBMITTED BEFORE THE 1ST RESPONDENT Exhibit P14OF THE OPTION FOR AMNESTY SCHEME DATED 05-11-2021 Exhibit P15 AOF THE LETTER DATED 25-11-2021 ISSUED BY THE 1ST RESPONDENT.