M/S Jewel Homes Private Limited vs. The Intelligence Officer/State Tax Officer
Original PDF →IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL MONDAY, THE 10TH DAY OF FEBRUARY 2020 / 21ST MAGHA, 1941 WP(C).No.3521 OF 2020(M) PETITIONER: M/S JEWEL HOMES PRIVATE LIMITED CASA GRANITE BUILDINGS, 2ND FLOOR, DESABHIMANI ROAD, KALOOR, ERNAKULAM, KOCHI, REPRESENTED BY ITS MANAGING DIRECTOR, MR. P.A.JIHAS. BY ADV. SRI.RAMESH CHERIAN JOHN RESPONDENTS: 1 THE INTELLIGENCE OFFICER/STATE TAX OFFICER, SQUAD NO.V, OFFICE OF THE ASSISTANT COMMISSIONER (INTELLIGENCE), CLASS TOWER, 2ND FLOOR, OLD RAILWAY STATION ROAD, STATE GOODS AND SERVICE TAX DEPARTMENT, ERNAKULAM, KOCHI-682 018. 2 THE ASSISTANT COMMISSIONER (WC AND LT), OFFICE OF THE DEPUTY COMMISSIONER, STATE GOODS AND SERVICE TAX DEPARTMENT, CLASS TOWER, 2ND FLOOR, OLD RAILWAY STATION ROAD, ERNAKULAM, KOCHI-682 018. 3 THE ASSTSTANT COMMISSIONER OF STATE TAX, SGST DEPARTMENT, KERALA, ERNAKULAM, CIVIL STATION, KAKKANAD, KOCHI-682 030. ADV.SMT.THUSHARA JAMES, GOVT.PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.3521 OF 2020(M) 2 JUDGMENT Dated this the 10th day of February 2020 The petitioner in this case has assailed the orders of assessment which are concededly appealable under Section 67 of the Kerala Value Added Tax Act.
The learned counsel for the petitioner submitted that Exts.P8 and P9 demand notices for assessment for 3 rd and 4 th quarter of the period 2015-2016 and for the period 2016-2017 are dated 18.12.2018. Petitioner filed a reply / objection dated 15.1.2019. However vide Exts.P12 and P13, orders have been passed in proposing a penalty which are not sustainable as do not conform with the principles of natural justice. It refers to an opportunity of hearing of a period prior to the issuance of notice ie, April, 2018. The remedy of appeal is though available as per the amended provisions of sub section 4 of Section 55 of the Act, petitioner is required
WP(C).No.3521 OF 2020(M) 3 to deposit the 20% of the tax amount.
I am afraid, the aforementioned argument is not sustainable for the simple reason that on pure and simple glance of Exts.P8 and P9, a notice dated 10.4.2018 was issued to the petitioner for production of the books of accounts for the 3 rd and 4 th quarter of the periods 2015-2016 and 2016- 2017. In the meantime, proceedings were held resulting in to an intention to propose penalty by the notices for giving hearing on 17.1.2019 which was duly replied by the petitioner on 15.1.2019. The references in the assessment order to the opportunity of hearing on 23.4.2018, 10.5.2018 and 31.01.2019, the submission of the petitioner cannot be even suggested for the reason that the notices are dated 18.12.2018. The aforementioned arguments are not able to cut ice in view of the reference as it was pertaining to the opportunity given after issuance of notice dated 10.4.2018 for production of books of accounts and the date of opportunity of hearing was
WP(C).No.3521 OF 2020(M) 4 after the notice dated 18.12.2018. The subject under references of Exts.P8 and P9 and the operative part of the order is extracted hereinbelow:- “NOTICE UNDER SECTION 67(1) (C) OF THE KVAT ACT 2003 Sub : KVAT Act 2003 - verification of books of accounts for the year 2015-16 of the dealers M/s Jewel Homes (P)Ltd, Ernakulam TIN 320720626234 - non filing of statutory return and non-payment of tax due for the year 2015-16 - penalty proposed - reg : Ref : Notice issued for the production of books of accounts for the year 2015-16 dated 10.04. 18. NOTICE UNDER SECTION 67(1) (C) OF THE KVAT ACT 2003 Sub : KVAT Act 2003 - verification of books of accounts for the year 2016-17 of the dealer M/s Jewel Homes (P) Ltd, Ernakulam TIN 32072062634 - non filing of statutory return and non-payment of tax due for the year 2016-17 - penalty proposed - reg : Ref : Notice issued for the production of books of accounts for the year 2016 -17 dated 10.04. 18. Objections if any to the above proposal shall be filed with documentary evidence within 15 days of receipt of this notice. Failing which the proposed penalty will be confirmed without further intimation. Your are also affected an opportunity of
WP(C).No.3521 OF 2020(M) 5 personal hearing on 17.01.19 at 11 AM in the office of the undersigned. After receiving the notice dealer filed letters to postponed the adjournment and considering the request of the dealer, the dealer had given two more opportunities to appear before the office and the date allotted to the dealer was on 23.04.2018, 10.05.2018 and 31.01.2019. But since this time the dealer had not filed any objections against the proposed penalty even though he had given enough time to do that. In this circumstances in order to complete the case the following orders are issued by confirming the penalty already issued in the notice.”
I am afraid, I do not find any justification in this writ petition to bring the matter within the realm of judicial review to form an opinion that the principles of natural justice were flouted. The writ petition is accordingly dismissed. AMIT RAWAL JUDGE ACM/12.2.2020
WP(C).No.3521 OF 2020(M) 6 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1OF THE RETURN IN FORM NO 10 B APPLICABLE TO WORKS CONTRACTORS FILED BY THE PETITIONER FOR THE 1ST OF 2015-16 FOR THE RETURN PERIOD 1ST APRIL 2015 TO 30TH JUNE 2015 EXHIBIT P2OF THE RETURN IN FORM NO 10 B APPLICABLE TO WORKS CONTRACTORS FILED BY THE PETITIONER FOR THE 2ND QUARTER OF 2015-16 FOR THE RETURN PERIOD 1ST JULY 2015 5O 30TH SEPTEMBER 2015 EXHIBIT P3OF THE PHOTOGRAPH OF THE SAID PROJECT AT KARUKAPPALLY, DESHABHIMANI, KALOOR EXHIBIT P4OF THE AUDITED PROFIT & LOSS STATEMENT FOR THE YEAR ENDED 31ST MARCH 2016 EXHIBIT P5OF THE AUDITED PROFIT & LOSS STATEMENT FOR THE YEAR ENDED 31ST MARCH 2017 EXHIBIT P6OF THE ORDER IN ORIGINAL DATED 21.2.2018 TOWARDS SERVICE TAX DUES FOR THE PERIOD OCTOBER 2011 TO MARCH 2016 PASSED BY THE COMMISSIONER OF CENTRAL GST AND CENTRAL EXCISE, THIRUVANANTHAPURAM EXHIBIT P7OF THE STATEMENT ISSUED BY ICICI BANK SHOWING THE OUTSTANDING DUES AS ON 31.3.2016 EXHIBIT P8OF THE NOTICE DATED 18.12.2018 ISSUED U/S 67(1) OF THE ACT FOR THE 3RD & 4TH QUARTER OF THE PERIOD 2015-16 EXHIBIT P9OF THE NOTICE DATED 18.12.2018 ISSUED U/S 67(1) OF THE ACT FOR THE PERIOD 2016-17
WP(C).No.3521 OF 2020(M) 7 EXHIBIT P10OF THE REPLY/OBJECTION DATED 15.1.2019 FILED BEFORE THE 1ST RESPONDENT FOR THE 3RD & 4TH QUARTER OF THE PERIOD 2015-16 EXHIBIT P11OF THE REPLY/OBJECTION DATED 15.1.2019 FILED BEFORE THE 1ST RESPONDENT FOR THE PERIOD 2016-17 EXHIBIT P12OF THE ORDER IMPOSING PENALTY U/S 67(1) OF THE ACT DATED 27.2.2019 FOR THE 3RD & 4TH QUARTER OF THE PERIOD 2015-16 EXHIBIT P13OF THE ORDER IMPOSING PENALTY U/S 67(1) OF THE ACT DATED 27.1.2019 FOR THE PERIOD 2016-17 EXHIBIT P14OF THE APPLICATION DATED 20.1.2020 FILED IN THE OFFICE OF THE 1ST RESPONDENT FOR A CERTIFIED COPY OF EXT P12 AND EXTP13 ORDERS EXHIBIT P15OF THE AFFIDAVIT OF THE ACCOUNTS MANAGER MRS. MADHUPALA RAMACHANDRAN. EXHIBIT P15 (A)OF THE DEATH CERTIFICATE OF MRS.MADHUPALAS HUSBAND EXHIBIT P16OF THE REVENUE RECOVERY NOTICE DATED 27.1.202 ISSUED BY THE 3RD RESPONDENT FOR THE PERIOD 2015-16 EXHIBIT P17OF THE REVENUE RECOVERY NOTICE DATED 27.1.2020 ISSUED BY THE 3RD RESPONDENT FOR THE PERIOD 2016-17
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.