R.V.Muhammed Sheriff vs. The Commercial Tax Officer(Works Contact) - Kerala High Court, 21 July 2020

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR TUE AY, THE 21ST DAY OF JULY 2020 / 30TH ASHADHA, 1942 WP(C).No.14704 OF 2020(K) PETITIONER: R.V.MUHAMMED SHERIFF AGED 55 YEARS S/O.KUNJIMOIDU, MANAGING PARTNER NAKSHATRA BUILDERS, SUNEETHI S GURUVAYUR SOUTH INNER RING ROAD GURUVAYUR-680101 BY ADVS. SRI.P.CHANDRASEKHAR SRI.K.K.MOHAMED RAVUF SMT.K.VIDYA SHRI.SATHEESH V.T. RESPONDENTS: 1

THE COMMERCIAL TAX OFFICER(WORKS CONTACT) AYYANTHOLE-680003, THRISSUR THE DEPUTY COMMISSIONER(APPEALS) DEPARTMENT OF COMMERCIAL TAXES STATE GST DEPARTMENT AYYANTHOLE-680003, THRISSUR BY GOVERNMENT PLEADER DR THUSHARA JAMES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.P.(C).No.14704 of 2020 2 JUDGMENT The petitioner has approached this Court challenging Ext.P4 notice issued to him pursuant to initiation of suo motu revision proceedings for the assessment year 2017-2018 under the Kerala Value Added Tax Act (hereinafter referred to as 'the KVAT Act'). Similarly, he also impugned Ext.P6 assessment order that was passed against him for the assessment year 2016-2017 under Section 25(1) of the KVAT Act read with Section 25AA.

Although various contentions are raised in the Writ Petition in its challenge against the notice and the assessment order referred to above, I am of the view that inasmuch as Ext.P4 is only a notice proposing an action against the assessee, pursuant to a suo motu revision effected by the department on the assessment order for 2017- 2018, the assessee would have to be relegated to his alternate remedy of pursuing Ext.P5 reply, that he has already filed in response to Ext.P4 notice, and getting the matter adjudicated by the adjudicating authority at first instance. Similarly, as against Ext.P6 assessment order, that is passed against the assessee for the assessment year 2016-2017, he has an effective alternative remedy by way of an appeal before the appellate authority. I am of the view that a Writ Petition impugning either Ext.P4

W.P.(C).No.14704 of 2020 3 notice or Ext.P6 assessment order is not maintainable before this Court at this stage of the proceedings.

I, therefore, dismiss the Writ petition in its challenge against Ext.P4 notice and Ext.P6 assessment order and relegate the petitioner to his remedy of pursuing Ext.P5 reply to Ext.P4 notice before the adjudicating authority, and filing an appeal against Ext.P6 order before the appellate authority under the KVAT Act.

Taking note of the submission of the learned counsel for the petitioner that he would require some time to move the appellate authority against Ext.P6 assessment order, I direct that recovery proceedings for recovery of amounts confirmed against the petitioner by Ext.P6 assessment order shall be kept in abeyance for a period of one month so as to enable the petitioner to move the appellate authority, in the meanwhile. The Writ Petition is disposed as above. A.K.JAYASANKARAN NAMBIAR JUDGE mns/21.7.2020

W.P.(C).No.14704 of 2020 4 APPENDIX PETITIONERS EXHIBITS EXHIBIT -P1ASSESSMENT ORDER NO.32081608337/2017-18(APRIL- JUNE) DATED 22.01.2020 EXHIBIT P2-ASSESSMENT ORDER NO.32081608337/2016-17(APRIL TO JUNE) DATED 17.12.2019 EXHIBIT P3-OF THE WRITTEN OBJECTION DATED 21.01.2020 EXHIBIT P4-OF THE NOTICE U/S 56 DATED 29.02.2020 ISSUED BY 2ND RESPONDENT EXHIBIT P5-OF THE REPLY GIVEN BY THE PETITIONER, DATED 16.03.2020 EXHIBIT P6-ASSESSMENT ORDER NO.32081608337/2016-17(APRIL- JUNE) DATED 22.01.2020 EXHIBIT P7-OF THE APPLICATION IN FORM NO IB FOR 2016-2017 EXHIBIT P8-OF THE APPLICATION IN FORM NO IB FOR 2017-2018 EXHIBIT P9-OF THE DEMAND NOTICE ISSUED BY THE 1ST RESPONDENT, DATED 22.01.2020 EXHIBIT P10-OF THE DEMAND NOTICE ISSUED U/S 7 OF THE KERALA REVENUE RECOVERY ACT, DATED 29.02.2020 RESPONDENTS EXHIBITS:NIL //// P.A TO JUDGE