The Kerala Cardamom Processing And Marketing Company Limited vs. State Of Kerala
Original PDF →IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL TUE AY, THE 17TH DAY OF MARCH 2020 / 27TH PHALGUNA, 1941 WP(C).No.8368 OF 2020(U) PETITIONER/S: THE KERALA CARDAMOM PROCESSING AND MARKETING COMPANY LIMITED SPICE HOUSE, THEKKADY, IDUKKI DISTRICT,KERALA-685 509, REPRESENTED BY ITS MANAGER-ACCOUNTS MR. BOBAN P. MANI BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM RESPONDENT/S: 1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001 2 THE COMMISSIONER, KERALA STATE GST DEPARTMENT, TAX TOWER, KARAMANA. P.O., KILLIPALAM, THIRUVANANTHAPURAM-695 002 3 THE ASSISTANT COMMISSIONER, KERALA STATE GST DEPARTMENT, IDUKKI AT KATTAPPANA-685 515 4 THE CIRCLE INSPECTOR OF POLICE, OFFICE OF THE CIRCLE INSPECTOR OF POLICE, KUMILY, IDUKKI-685 509 OTHER PRESENT: GP DR THUSHARA JAMES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.8368 OF 2020(U) 2 JUDGMENT The petitioner has approached this Court seeking directions to quash Ext.P16 order issued by the 3rd respondent/Assistant Commissioner.
In order to address the issue raised herein above, the pleadings of the writ petition would reveals, the petitioner being an assessee of the 3rd respondent under the Central Sales Tax Act received a noticed dated 13th March 2013 under Section 25(1) of the 2003 Act pertaining to the assessment year 2012-13 indicating a difference of Rs.3,79,89,788/- lakhs on account of certain inter-state transaction reflected in the return as well as the details available from the check post. On receipt of the aforementioned notice Ext.P1, detailed reply was filed alleging that there was no connection with the said transaction and there was foul play at the end of the dealers in Tamil Nadu, in respect of invoices issued amounting to
WP(C).No.8368 OF 2020(U) 3 Rs.88,80,000/-.
In order to deny such transaction, the assessing authority was requested to conduct proper investigation in consultation with the authorities in Tamil Nadu for resurfacing of culprits. The petitioner also requested for the details of the vehicle number, date of reporting at check post, details of the owner of the vehicle, details of the driver of the vehicle etc. for enabling the petitioner to file objections. The learned counsel appearing on behalf of the petitioner submits that all the facts have been categorically stated in the reply dated 25th of April 2019, Ext.P2. 3rd respondent vide notice dated 15th May 2019, send a communication, supplying the petitioner with the details of the check post transactions transported in the name of the petitioner, Ext.P3. However, the 3rd respondent conveniently refrained from its responsibility to investigate on the matter, by stating that the consignors of the disputed transactions are outside the State of Kerala.
On noticing the stand of the 3rd respondent, a request letter was submitted to the Circle Inspector of Police (4th respondent) dated 4th June 2019, Ext.P4. In the
WP(C).No.8368 OF 2020(U) 4 meantime, the petitioner filed a reply, Ext.P5 dated 7th of June 2019 in response to Ext.P3 communication. Reliance was laid to the mandate under Section 81 and 82 of 2003 Act authorizing the statutory authorities to issue summons and to enforce the attendance of any person and to examine such persons and to compel the production of any document. Accordingly, the request was made for summoning the persons and cross-examination, whose statements were relied on in show cause notice Ext.P1. On receipt of Ext.P5, the petitioner submitted another request dated 27th June 2019 Ext.P6. The 3rd respondent issued a hearing notice, to Mr. Shamsudheen and Biju, Ext.P7 which were returned with an endorsement 'enquiry not known' and 'addressee refused'. It was also intimated that Mr.Shamsudheen has given a statement that he was unaware of the whereabouts of the driver and that he did not have any documents with him, relating to the alleged inter-state transactions in the name of the petitioner. Mr. Ayyappan (driver of the vehicle owned by Mr.Joy) stated that the goods were transported in the name of the petitioner and unloaded at Chelimada premises. The petitioner
WP(C).No.8368 OF 2020(U) 5 received a communication of affording a personal hearing on 9th August 2019 vide Ext.P8. A request was made for adjournment and cross-examine Mr. Ayyappan (driver) and Mr. Shamsudheen (owner) and to cross examine check post officials. The petitioner reiterated the request to cross- examine the consignors. However, the 2nd respondent issued another notice intimating the personal hearing on 9th August 2019, Ext.P9. The 3rd respondent issued notice dated 15th November 2019, intimating the petitioner that the notice issued to Mr. Muhammed Hussain and Mr. Biju P.J was returned without receipt. The notice issued to Sanjay Traders, Bodinayakanur was not responded and granted the personal hearing on 2nd December 2019 vide communication, ibid, Ext.P11. 5. 3rd respondent also issued notices to the drivers/owners of the vehicles involved in the alleged inter- state transactions. However, the 3rd respondent postponed the hearing on 2nd December 2019 to 30th December 2019 due to an official conference of the Finance Minister and notices dated 13th December 2019 to various persons issued by the 3rd respondent persons are marked as Exts.P13,
WP(C).No.8368 OF 2020(U) 6 P13(a) and P13(b). On 30th December 2019, counsel for the petitioner appeared and cross examined Mr. Ayyappan and Mr.Shamsudheen. Mr.Joy did not turn up for the cross examination. However, the cross-examination of Ayyappan and Shamsudheen was conducted. From the statements obtained from the said persons, it is revealed that both of them have not visited the premises of consignors and they have acted as per the instructions of a middle man name Mr.Jamal. Certain other information were also derived during the cross examination. After the cross examination 3rd respondent, Assistant Commissioner, Kerala State GST Department informed the counsel for petitioner that separate notices will be issued to the consignors and Mr.Jamal. The petitioner vide communication dated 28th January 2020, Ext.P15, requested the 3rd respondent for taking a strict action initiated against Mr. Jamal and Sanjay Traders and Mahadev Traders, Bodinayakanur. However, the 3rd respondent vide impugned order Ext.P16 passed the assessment order by projecting that the request of the petitioner for cross-examination of the witness has been adhered to. The learned counsel further submitted that the
WP(C).No.8368 OF 2020(U) 7 order impugned is not sustainable as it is an eyewash for projecting that the opportunity to cross-examine the petitioner has been accorded whereas time and again in the written communication referred to above, request was made to summon the persons for effective cross-examination without noticing the gravity of the issues involved. Infact, the alleged transaction was the result of foul play involving the 3rd person. It is in these circumstances, extra ordinary writ juri iction of this Court under Article 226 of the Constitution of India has been sought against the order under Ext.P16, which is also appealable.
I have heard the learned counsel for the parties, appraised the paper book and of the view that there is no force and merit in the submission. Pith and substance of the facts revealed herein above, which are not being mentioned again in order to avoid repetition would reveal that the petitioner had been afforded an opportunity to cross- examine the witnesses. In case the other evidence which has been sought are not produced, the petitioner can always derive the benefits of provisions of Section 114(g) of the Indian Evidence Act. The same reads as under:
WP(C).No.8368 OF 2020(U) 8
Court may presume existence of certain facts. xxxxxx (g) That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it; The above provision enables the authority or the court to presume existence of certain facts. The petitioner can always take the benefit of such provisions at the relevant point of time by making submissions in an appropriate forum and competent authority but not through the process of this Court, as it appears to be a adoption of a dilatory tactics. In view of the above observation, I do not find any justification in adhereing to the prayer as sought for, the writ petition is accordingly dismissed. AMIT RAWAL sab JUDGE
WP(C).No.8368 OF 2020(U) 9 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 THEOF THE NOTICE DATED 13.03.2019 ISSUED BY THE 3RD RESPONDENT (ALONG WITH ANNEXURES) UNDER SECTION 25 (1) OF THE KAVAT ACT FOR THE YEAR 2012- 13 EXHIBIT P2 THEOF THE REPLY DATED 25.04.2019 (ALONG WITH ANNEXURES) SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT EXHIBIT P3 THEOF THE NOTICE DATED 15.05.2019 ISSUED BY THE 3RD RESPONDENT EXHIBIT P4 THEOF THE LETTER (WITHOUT ANNEXURES) DATED 04.06.2019 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT EXHIBIT P5 THEOF THE LETTER (WITHOUT ANNEXURES) DATED 07.06.2019 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT EXHIBIT P6 THEOF THE LETTER DATED 27.06.2019 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT EXHIBIT P7 THEOF THE HEARING NOTICE DATED 02.08.2019 ISSUED BY THE 3RD RESPONDENT EXHIBIT P8 THEOF THE LETTER DATED 09.08.2019 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT EXHIBIT P9 THEOF THE NOTICE DATED 26.08.2019 ISSUED BY THE 2ND RESPONDENT EXHIBIT P10 THEOF THE LETTER DATED 28.08.2019 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT EXHIBIT P11 THEOF THE NOTICE DATED 15.11.2019 ISSUED BY THE 3RD RESPONDENT EXHIBIT P12 THEOF THE NOTICE DATED 15.11.2019 ISSUED BY THE 2ND RESPONDENT TO MR. JOY.M.C
WP(C).No.8368 OF 2020(U) 10 EXHIBIT P12A THEOF THE NOTICE DATED 15.11.2019 ISSUED BY THE 2ND RESPONDENT TO MR. AYYAPPAN KUMILY EXHIBIT P12B THEOF THE NOTICE DATED 15.11.2019 ISSUED BY THE 2ND RESPONDENT TO MRT.N.SHANSUDHEEN, KUMILY EXHIBIT P13 THEOF THE NOTICE DATED 13.12.2019 ISSUED BY THE 3RD RESPONDENT TO MR. JOY.M.C EXHIBIT P13A THEOF THE NOTICE DATED 13.12.2019 ISSUED BY THE 3RD RESPONDENT TO MR. AYYAPAN KUMILY EXHIBIT P13B THEOF THE NOTICE DATED 13.12.2019 ISSUED BY THE 3RD RESPONDENT TO MR.T.N.SHAMSUHDEEN, KUMILY EXHIBIT P14 THEOF THE RECORD OF CROSS EXAMINATION OF MR.AYYAPPAN ALONG WITH THE ENGLISH TRANLSATION ON 30.12.2019 EXHIBIT P14A THEOF THE RECORD OF CROSS EXAMINATION OF MR. SHAMSUDHEEN ON 30.12.2019 ALONG WITH THE ENGLISH TRANLSATION EXHIBIT P15 THEOF THE LETTER DATED 28.01.2020 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT EXHIBIT P16 THEOF THE ORDER DATED 23.01.2020 ISSUED BY THE 3RD RESPONDENT FOR THE YEAR 2012-13 EXHIBIT P17 THEOF THE TRACK REPORT DATED 01.02.2020 OBTAINED FROM WEB PORTAL OF INDIA POST
Reproduced from the public record of the Kerala High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.