Judgment
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W.P.(C) No.17184 of 2018 2024:KER:80860
0IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON WEDNESDAY, THE 30TH DAY OF OCTOBER 2024 / 8TH KARTHIKA, 1946 WP(C) NO. 17184 OF 2018 PETITIONER:
M/S. JOSGOLD BUILDING NO. 12/19, 12/20 NEW NO. 20/1926, 20/1930, CENTRAL JUNCTION, KOTTAYAM 686001, REPRESENTED BY ITS MANAGING DIRECTOR, SRI. BABU M PHILIP
BY ADVS.
SRI.A.KUMAR SRI.P.J.ANILKUMAR SMTG.MINI1748 SRI.P.S.SREE PRASAD
RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695001 2 THE COMMISSIONER STATE GOODS AND SERVICES TAX DEPARTMENT, THIRUVANANTHAPURAM 695001 3 STATE TAX OFFICER FIRST CIRCLE, STATE GOODS AND SERVICES TAX DEPARTMENT, KOTTAYAM 686002
BY ADV.
SRI.SAYED M THANGAL, SR.GP
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W.P.(C) No.17184 of 2018 2024:KER:80860
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30.10.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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HARISANKAR V. MENON, J.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.17184 of 2018 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of October, 2024
JUDGMENT
The petitioner is a dealer in jewellery, having registration under the provisions of the Kerala Value Added Tax Act, 2003 (KVAT Act for short).
2.
The petitioner was satisfying tax with reference to the provisions of Section 8 (f) of the KVAT Act for the assessment year 2016-17.
3.
However, an offence under Section 47 was detected, and an order of penalty was imposed on 16.09.2017. The said proceedings were independently challenged by the petitioner.
4.
On the basis of the afore penalty order, Ext.P4 notice dated 19.04.2018, proposing to cancel the compounding for 2016-17 as also Ext.P5 notice proposing assessment under Section 25(1), were issued against the petitioner herein.
5.
It is challenging the afore notices as also the consequential order at Ext.P7 issued by the 3rd respondent herein that the captioned writ petition is filed by the petitioner.
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6.
I have heard Sri.A.Kumar, the learned Senior Counsel instructed by Smt.G.Mini, the learned counsel for the petitioner and Sri.Sayed M.Thangal, the learned Government Pleader.
7.
It is seen that the dispute in this writ petition is against Ext.P7 order. Ext.P7 is a composite order, by which the compounding granted to the petitioner was cancelled and the assessment completed on a regular basis under Section 6 read with Section 25(1) of the KVAT Act.
8.
It is also noticed that the cancellation of compounding is sought to be carried out on the basis of the penalty imposed on 16.09.2017. This Court in W.P.(C).No.3593 of 2017 by judgment dated 02.08.2017, considering an almost similar situation with reference to the assessment year 2012- 13, held that under Section 8(f) of the KVAT Act, the tax is being notionally fixed with reference to the turnover for the consecutive previous three years, and so much so, the detection of offence during a particular year cannot have any bearing with respect to the fixation of the liability for the previous years. The judgment of this Court in the afore writ
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petition, in my opinion, applies to the facts and circumstances of the case at hand also.
Resultantly, this writ petition would stand allowed, setting aside Ext.P7 issued by the 3rd respondent.
Sd/- HARISANKAR V. MENON
JUDGE anm
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APPENDIX OF WP(C) 17184/2018
PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE PERMISSION FOR COMPOUNDING EXHIBIT P2 TRUE COPY OF THE PENALTY ORDER DATED 16.09.2017 EXHIBIT P3 TRUE COPY OF THE MEMORANDUM OF APPEAL EXHIBIT P4 TRUE COPY OF THE NOTICE U/S8(F) (IV) DATED 19.04.2018 EXHIBIT P5 TRUE COPY OF THE NOTICE U.S 25(1) DATED 19.04.2018 EXHIBIT P6 TRUE COPY OF THE REPLY (WITHOUT ANNEXURES) EXHIBIT P7 TRUE COPY OF THE ORDER DATED 11.05.2018