Manisankar vs. The State Tax Officer (Works Contract And Lt)
Original PDF →IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL MONDAY, THE 09TH DAY OF MARCH 2020 / 19TH PHALGUNA, 1941 WP(C).No.6930 OF 2020(M) PETITIONER: MANISANKAR, AGED 53 YEARS M/S.M.S.ASSOCIATES, SIVADHAM, PUTHUR, PALAKKAD-678001. BY ADVS. SRI.HARISANKAR V. MENON SMT.MEERA V.MENON RESPONDENTS: 1 THE STATE TAX OFFICER (WORKS CONTRACT AND LT), OFFICE OF THE DY.COMMISSIONER, DEPARTMENT OF STATE GST, PALAKKAD-678001. 2 THE COMMISSIONER OF COMMERCIAL TAXES, TAX TOWERS, KILLIPPALAM, KARAMANA, THIRUVANANTHAPURAM-695002. OTHER PRESENT: GP DR THUSHARA JAMES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.6930 OF 2020 -2- JUDGMENT Petitioner is engaged in the execution of works contract and was an assessee under the KVAT Act. For the assessment year 2016-17 opted for payment of tax under Section 8(a)(ii) of the Kerala Value Added Tax, 2003 as applicable in the year 2016. In assessment proceedings assessing authority found that import of goods from other states for an amount of Rs.52,501/- was not for the incorporation of the works contract and therefore, did not accept the proposal of the assessee under 2(i) of Section 8 (a) and noticed escaped assessment, to be reassessed the total outstanding amount, thus, issued demand of Rs.8,74,875/-.
Learned counsel appearing on behalf of the petitioner submits that the assessment officer committed illegality, the assessment order suffered from patent errors apparent on record, for the reason that in the return of 2-3
WP(C).No.6930 OF 2020 -3- Crores only paltry purchase of Rs.52,501/-, in fact for personal use has been found to be not used for the purpose, it was merely on the ground of not maintaining of accounts. No effective opportunity had been afforded. In these circumstances, rectification application Ext.P2 dated 18.02.2020 has been preferred. The aforementioned rectification was also completed by an affidavit of the petitioner specifying reasons of utilisation of the goods imported from outside the state. If the appropriate directions are issued there is likelihood that the assessment order would be rectified by taking the import of the goods falling under 2(i) instead of 1(i)(a) of Section 8(a).
Learned Government Pleader submits that the rectification application apparently would not lie for the reasons despite having given opportunity of hearing, as reflected from the impugned order, petitioner did not place on record any material much less books of account or even the affidavit attached to the rectification application. Such
WP(C).No.6930 OF 2020 -4- assertions and material would not form within the term “error apparent on record”. The petitioner has a remedy to file appeal under Section 55 of the Act and urges this Court for dismissal of the writ petition.
I have heard learned counsel for the parties and appraised the paper books.
No doubt the assessing officer referred to the amendment clause in Section 8(a)(i) as it was in vogue in 2014 not in 2016. On going through the amendment in 2016, the added provisions are having no effect on the assessment proceedings for the plain and simple manner as prescribed in 2(i) and 1(i) remains the same. In other words, principal interpretation remains the same. It has not been disputed by either of the counsel to the lis. The term error apparent on record is pari materia to what has been mentioned and is prescribed in Section 114 of the Act or Order XLVII of the Code of Civil Procedure. The parameters of review are limited to the extent when there is an actual
WP(C).No.6930 OF 2020 -5- error apparent on record. The order sought to be reviewed, referred to incorrect provisions or escaped reference of materials in the operative part of the order etc.
An additional evidence or review of affidavit in the absence of statement of books of account cannot be construed to be error apparent on record but an additional evidence which I refrain to comment whether it could be permissible for the petitioner to enclose along with the appeal or not. Be that as it may, on going through the contents of the rectification application and as well as the arguments of the learned counsel, it is not a case wherein an appropriate direction can be issued to the assessing officer to consider the rectification application in the manner as sought. No ground of interference is made out. Without expressing anything on the merits of the matter, this writ petition is accordingly dismissed. Any observation that is made hereinabove shall not be construed to be an expression of opinion on the merits of
WP(C).No.6930 OF 2020 -6- the matter as it may not prejudice the right of the petitioner in availing the remedy of appeal. AMIT RAWAL vv JUDGE
WP(C).No.6930 OF 2020 -7- APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2016-17 DATED 09.01.2020. EXHIBIT P2 COPY OF APPLICATION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 18.02.2020. EXHIBIT P3 COPY OF AFFIDAVIT FILED BY THE PETITIONER DATED 19.02.2020. //// PA TO JUDGE
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.