M.T.Thomas vs. Assistant Commissioner - Kerala High Court, 22 October 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR TUE AY, THE 22ND DAY OF OCTOBER 2019 / 30TH ASWINA, 1941 WP(C).No.25401 OF 2019(A) PETITIONER: M.T.THOMAS AGED 59 YEARS MANAGING DIRECTOR, M/S. THOMSON RUBBERS INDIA PVT LTD, KURUVAMOOZY P O, ERUMELY, 686509. BY ADV. SRI.C.K.SREEJITH RESPONDENTS: 1 ASSISTANT COMMISSIONER SPECIAL CIRCLE, SGST DEPARTMENT, KOTTAYAM-686001. 2 DEPUTY COMMISSIONER, SGST DEPARTMENT, CIVIL STATION BUILDING, KOTTAYAM- 686001, 3 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. SMT. THUSHARA JAMES; GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No.25401 OF 2019 2 JUDGMENT The petitioner has approached this Court aggrieved by Ext.P11 order of the 1st respondent, rejecting his claim for refund of tax paid for the assessment years 2015-2016 and 2016-2017 under Kerala Value Added Tax Act. The primary contention in the writ petition in its challenge against Ext.P11 is that although the petitioner had given a detailed explanation justifying the claim for refund, the explanation given by the petitioner has been summarily brushed aside in Ext.P11, which does not contain any reason as to why the explanation given by the petitioner was not acceptable. It is therefore contended that Ext.P11 order is vitiated by a non-compliance with the rules of natural justice.

I have heard the learned counsel appearing for the petitioner and also the learned Government Pleader appearing for the respondents.

On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, I find force in the contention of the learned counsel for the petitioner that Ext.P11 order is vitiated by a non-application of mind by the 1st respondent. A perusal of Ext.P11 would clearly indicate that there has been no application of mind by the 1st respondent to the explanation offered by the petitioner to justify his claim for refund of tax. This being the case, I am of the view that Ext.P11 cannot be legally sustained. I therefore quash Ext.P11, and direct the 1st respondent to

WP(C).No.25401 OF 2019 3 consider the refund applications preferred by the petitioner afresh and pass orders thereon after adverting to the explanation given by the petitioner. To enable the 1st respondent to do so, I direct the petitioner to appear before the 1st respondent at his office at 11:00 am on 28.10.2019. The 1st respondent shall pass fresh orders as directed within a month thereafter. This writ petition is disposed as above. A.K.JAYASANKARAN NAMBIAR JUDGE SJ

WP(C).No.25401 OF 2019 4 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 THEOF THE VAT RETURN FOR MARCH 2016. EXHIBIT P2 THEOF THE MONTHLY RETURN FOR MARCH 2017. EXHIBIT P3 THEOF THE FORM NO.21CC DATED 30.5.2016. EXHIBIT P4 THEOF THE REFUND APPLICATION IN FORM NO.21C DATED 7/3/2017. EXHIBIT P5 THEOF THE REFUND APPLICATION IN FORM NO.21C FOR RS.10331556/-DATED 7/3/17. EXHIBIT P6 THEOF THE FORM NO.21C DATED 7/3/17 FOR RS.5408640/- EXHIBIT P7 THEOF THE APPLICATION IN FORM NO.21CC FOR RS.7818429/- EXHIBIT P8 THEOF THE NOTICE U/S. 25(1) DATED 19/7/2019. EXHIBIT P9 THEOF THE REPLY LETTER DATED 30.8.2019. EXHIBIT P10 THEOF THE LETTER DATED 30.8.2019. EXHIBIT P11 THEOF THE ORDER PASSED ON 2/9/2019 BY THE ASSISTANT COMMISSIONER, STATE GST DEPARTMENT.