M/S.Priority Gold PVT. LTD. vs. The Asst. Commissioner Of State Tax
Original PDF →IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI TUE AY, THE 06TH DAY OF AUGUST 2019 / 15TH SRAVANA, 1941 WA.No.1744 OF 2019 AGAINST THE JUDGMENT IN WP(C) 16884/2019 OF HIGH COURT OF KERALA APPELLANT/PETITIONER: M/S.PRIORITY GOLD PVT. LTD. 19/1214, GROUND FLOOR, ST.LOUIS COMMERCIAL COMPLEX, CHURCH CIRCLE, ERINJERI ANGADI, THRISSUR-680001, REPRESENTED BY ITS MANAGING DIRECTOR, JAISON SIMON PANAKKAL. BY ADVS. SRI.HARISANKAR V. MENON SMT.MEERA V.MENON RESPONDENTS/RESPONDENTS: 1 THE ASST. COMMISSIONER OF STATE TAX STATE GST DEPARTMENT, SPECIAL CIRCLE, THRISSUR-680001. 2 COMMISSIONER OF COMMERCIAL TAXES, TAX TOWERS, KILLIPPALAM, KARAMANA, THIRUVANANTHAPURAM-695002. SRI. MOHAMMED RAFIQ, GOVERNMENT PLEADER THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WA 1744/19 2 C.K. ABDUL REHIM, J. & R. NARAYANA PISHARADI, J. ------------------------------------------------- W.A. No. 1744 of 2019 ------------------------------------------------- Dated this the 6th day of August, 2019 J U D G M E N T C.K. Abdul Rehim, J. Petitioner in W.P.(C) No.16884 of 2019 is in appeal against the judgment of the Single Judge, dated 21.6.2019. The respondents herein are the respondents in the writ petition.
The appellant filed return under the Kerala Value Added Tax Act, 2003 (for short 'the Act') with respect to the assessment year 2014-2015, as per Ext.P1, conceding a total tax liability of Rs.25,81,274/-. They claimed input tax credit to the extent of Rs.51,71,761/-. In the return, the appellant had shown a total tax credit of Rs.52,13,765/- and claimed refund to the tune of Rs.26,32,491/- on setting off the input
WA 1744/19 3 credit. The appellant filed Ext.P2 application claiming refund of the excess input tax credit, as mentioned above. When the 1st respondent failed to consider the application for refund, the appellant approached this Court in W.P.(C) No.33014 of 2018. Through Ext.P3 judgment, this Court directed an expeditious disposal of the application, within a period of three weeks. The 1st respondent thereupon issued Exts.P4 and P4(a) notices proposing to revision of the assessment by invoking powers under Section 25(1) of the Act and also proposing to reject the application for refund. In the notices issued under Section 25(1) of the Act, it was informed that, input tax credit calculated on the total quantity of inter state stock transfer of Bullion effected will be disallowed and reversed. It was proposed to retrieve a total input tax credit of Rs.2,69,27,728/- along with interest, on the basis of the revised assessment proposed. The application for refund of the excess input tax credit was proposed to be disallowed. The appellant filed detailed objections to the proposal for revising the assessment, inter
WA 1744/19 4 alia contending that, the total input credit availed for the year concerned is only Rs.51,71,761/-. Therefore, it was pointed out that the proposal to disallow input tax credit of Rs.2,69,27,728/-, is not in order. But, by repelling the above said contention, 1st respondent finalised the assessment as proposed. In Ext.P6 order of assessment, the 1st respondent has not considered the above said objection raised by the appellant on its merits, even though such a contention was mentioned in the order. Instead, the 1st respondent simply reiterated the proposal as such, without mentioning any specific reason to repeal the above said contention. Evidently the contention was not adverted to on its merits. Consequent to Ext.P6 order of assessment, the 1st respondent had rejected the claim for refund, through another proceedings issued as per Ext.P6(a). The appellant challenged Exts.P6 and P6(a) proceedings in the writ petition filed, mainly contending that those orders suffer from rank perversity and that the perversity of reasoning is manifold from the fact that the assessing authority has taken the
WA 1744/19 5 claim for input tax credit as Rs.2,69,27,728/-, despite the specific claim for input tax credit made is only to the tune of Rs.51,71,761/-.
The learned single Judge while considering the writ petition found that, from the details exhibited in the accompanying documents the courts is of the view that, without further examination the ground of perversity raised in the writ petition could be considered. But the learned Single Judge had accepted the contention raised on behalf of the respondents that, even for exercising the juri iction for the said limited purpose, this court may have to encroach into the function of the appellate authority, in which a threadbare consideration of factual aspects is necessary. It was observed that the case at hand has got an arguable point for filing the appeal and that the explanation offered by the appellant before the authority can easily be appreciated by the appellate authority. Based on the above said observations, the writ petition was disposed of by giving liberty to the appellant to file statutory appeal and to seek
WA 1744/19 6 stay against the implementation of Ext.P6 order. For facilitating consideration of the stay petition, the learned Single Judge directed the parties to maintain status-quo as on the date of Ext.P6, for a period of 2 months. The appellate authority was directed to dispose of the stay petition before the expiry of the 2 months period granted.
Sri.Harisankar V. Menon, learned counsel appearing for the appellant contended that the learned Judge ought to have decided the matter on merits, after having found that the perversity committed by the authorities is explicit. It is pointed out that, total non-consideration of the objections raised against the proposal is writ at large in Ext.P6 order and it is evident that there is total lack of application of mind and non-advertance to the contentions raised. Therefore it is argued that the impugned order ought to have been quashed in exercise of the juri iction vested under Article 226 of the Constitution of India.
Per contra, learned Government Pleader appearing for the respondents contended that, whether there exists
WA 1744/19 7 any illegality or error in the revised assessment, is a question which need elaborate consideration based on factual aspects, including examination of the books of accounts of the appellant. Therefore there exist no special circumstances for permitting the appellant to bypass the appellate remedy, which is efficacious in nature. Learned counsel for the appellant pointed out that, for approaching the appellate authority, the appellant will be compelled to make payment of 1% of the disputed amount as court fee, which he could not recoup even if the appeal is allowed. But the learned Government Pleader pointed out that, insistence for payment of the court fee for filing the appeal is statutory in nature and the validity of which was already been upheld by this court.
Evidently, the learned Single Judge had considered the prima facie merit of the contentions raised by the appellant against Ext.P6 order. However, the appellant was relegated to avail the statutory remedy, on the finding that the same is more efficacious. We cannot hold that the
WA 1744/19 8 approach of the learned Judge is in any manner illegal, erroneous or improper. There exists no merit to reverse such a finding, in exercise of the appellate juri iction. At the same time, we take note of the observations contained in the impugned judgment to the extent of the learned Single Judge finding a strong prima facie case in favour of the appellant. Therefore we are of the opinion that, considering the special circumstances prevailing, interest of justice could be achieved by directing consideration of the appeal itself by the statutory appellate authority on an expeditious basis and till then to direct deferment of collection and recovery of the disputed amounts. We grant two weeks time from today to the appellant to file statutory appeals against Ext.P6 & P6 (a) orders. If the appeals are filed within the time stipulated, the statutory appellate authority shall consider the same as appeals filed within the time stipulated; and shall proceed to dispose of the appeals after affording opportunity of hearing to the parties concerned, at the earliest, at any rate, within a period of 2 months from the date of receipt of such appeals.
WA 1744/19 9 Till the disposal of the appeals as directed above, realization of the disputed amount in Ext.P6 shall be kept in abeyance. We make it clear that the relief granted as above is only on the basis of considering the particular circumstances prevailing in the case and the course adopted herein shall not be considered as a precedent in any other case. C.K. ABDUL REHIM, JUDGE. R. NARAYANA PISHARADI, JUDGE. vps/AMG
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.