M J Gold vs. Deputy Commissioner (Adjudication) - Kerala High Court, 07 February 2024

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR & THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH WEDNE AY, THE 7TH DAY OF FEBRUARY 2024 / 18TH MAGHA, 1945 WA NO. 169 OF 2024 AGAINST THE JUDGMENT WP(C) 3358/2024 OF HIGH COURT OF KERALA APPELLANT/PETITIONER IN WPC: M J GOLD T C NO. X/1095, COPPEN LANE, NEAR NEW CHURCH, THRISSUR REPRESENTED BY ITS MANAGING PARTNER, SRI. M K ANTOCHAN., PIN - 680001 BY ADV TOMSON T.EMMANUEL RESPONDENTS/RESPONDENT IN WP(C): 1 DEPUTY COMMISSIONER (ADJUDICATION) STATE GOODS AND SERVICES TAX DEPARTMENT, PUTHOLE, THRISSUR - 680 004, PIN - 680004 2 STATE TAX OFFICER AND STATE PUBLIC INFORMATION OFFICER STATE GOODS AND SERVICES TAX DEPARTMENT, PUTHOLE, THRISSUR., PIN - 680004 3 STATE OF KERALA TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, REPRESENTED BY SECRETARY TO GOVERNMENT., PIN - 695001 SR GP V K SHAMSUDHEEN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WA No.169/2024 -:2:- J U D G M E N T Dr. Kauser Edappagath, J.

The appellant is a partnership firm engaged in trade in imported gold bullion. The appellant's firm is registered under the provisions of the Kerala Value Added Tax Act and the Central Sales Tax Act ('KVAT/CST Act' for short).

The appellant filed monthly annual returns for the financial years 2016 and 2017, conceding a sale turnover of `31,62,34,543.68/-. The 1st respondent issued Ext.P2 notice under Section 25(1) of the KVAT Act to the appellant, proposing to assess the entire turnover @5%. The appellant gave Ext.P4 a reply stating that his turnover tax is liable to be taxed @1% and not @5%. The 1st respondent passed Ext.P7 assessment order assessing the turnover of the appellant @5%. Thereafter, the appellant preferred Ext.P8 application under Section 66 of the KVAT Act for rectification of the mistake that allegedly occurred in

WA No.169/2024 -:3:- Ext.P7 assessment order. After filing the rectification application, the appellant approached this Court in WP(C) No.20983/2023. This Court, as per Ext.P9 judgment, disposed the writ petition directing the 1st respondent to consider and dispose Ext.P8 rectification application in accordance with the law. Thereafter, the 1st respondent considered Ext.P8 application, which was dismissed as per Ext.P10 order. The appellant challenged Ext.P10 before the learned Single Judge. The learned Single Judge dismissed the writ petition, relegating the appellant to the statutory appellate remedy. It is challenging the said judgment; the appellant is before us.

We have heard Sri.Tomson T.Emmanuel, the learned counsel for the appellant and Sri.V.K.Shamsudheen, the learned Senior Government Pleader. The appellant did not challenge Ext.P7 assessment order. Instead, he has chosen to file Ext.P8 application under Section 66 of the KVAT Act for rectification. The rectification is permissible only if there is any error apparent on the face of the record. In fact, what has been sought by the appellant in Ext.P8 application

WA No.169/2024 -:4:- is not rectification, but a review of the assessment order. No such power is vested with the assessing authority under Section 66 of the KVAT Act. The remedy open to the appellant is to challenge the assessment order in appeal. The disputed question of fact cannot be adjudicated in a writ petition. We find no merit in the writ appeal. Accordingly, it is dismissed. The time granted by the learned Single Judge to prefer appeal is extended for a further period of 15 days from today. The stay application, if any, filed by the appellant before the appellate authority shall be disposed of within two months. Till such period, the recovery proceedings pursuant to Ext.P7 order shall stand stayed. DR. A.K.JAYASANKARAN NAMBIAR JUDGE DR. KAUSER EDAPPAGATH JUDGE Rp