M J Gold vs. Deputy Commissioner (Adjudication)
Original PDF →IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH TUE AY, THE 30TH DAY OF JANUARY 2024 / 10TH MAGHA, 1945 WP(C) NO. 3358 OF 2024 PETITIONER/S: M J GOLD AGED 54 YEARS 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 RESPONDENT/S: 1 DEPUTY COMMISSIONER (ADJUDICATION) STATE GOODS AND SERVICES TAX DEPARTMENT, PUTHOLE, THRISSUR ., 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 OTHER PRESENT: RESHMITA RAMACHANDRAN-G THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 3358 OF 2024 2 JUDGMENT Dated this the 30th day of January, 2024 This is the second round of litigation before this court by the petitioner. The petitioner partnership is a registered dealer under the provisions of the Kerala Value Added Tax Act and Central Sales Tax Act (‘the KVAT and CST Acts’ for short). The petitioner’s business is trading in imported gold bullion. The petitioner filed monthly and annual returns for the financial year 2016-2017 before the State Tax Officer, 1st Circle, Thrissur. The petitioner conceded sales turnover of Rs. 31,62,34,543.68/-. 2.Notice under Section 25(1) of the KVAT Act dated 17.03.2023 for 2016-2017 was issued to the petitioner proposing to assess the entire turn over at the rate of 5%. The petitioner filed reply to the said show cause notice and claimed that the petitioner’s turn over tax is liable to be taxed only at the rate of 1% and not 5%. The original assessment order was passed on 29.05.2023 in Ext.P7 assessing the turn over of the petitioner at the rate of 5%. 3.The petitioner filed an application under Section 66 of the KVAT Act, for rectification of the mistake allegedly occurred in Ext.P7 assessment order. After filing the application, the petitioner approached this court in W.P (C) No.20983/2023. This court by the judgment and order dated 04.07.2023,
WP(C) NO. 3358 OF 2024 3 disposed of the said writ petition with the following terms:- “(i) The first respondent is directed to consider and dispose of Ext.P7 application, in accordance with law and as expeditiously as possible, after adverting to Exts.P5 to P5(b), at any rate, within a period of three months from the date of receipt of a certified copy of the judgment. (ii) It is made clear that this Court has not expressed anything on the merits of Ext.P7 application . (iii) Until such time orders are passed on Ext.P7 application, all further proceedings pursuant to Exts.P6 shall stand deferred.”
The petitioner’s rectification application filed under Section 66 of the KVAT has been considered in the light of the judgment passed by this court on 04.07.2023 in W.P(C) No.20983/2023 and the rectification application has been dismissed by the impugned order in Ext.P10, on the ground that in fact what the petitioner is seeking is not the rectification but fresh assessment order. Under the provisions of the KVAT Act, no such power is vested with the assessing authority to review its assessment order and pass fresh assessment order. 5.Considering the impugned order and the facts and circumstances, I am of the opinion that the assessing authority has not comitted any error of law or juri iction which requires an interference of this court under Article 227 of the Constitution of India. The petitioner has remedy of appeal against the assessment order and the order passed in the rectification application. Petitioner may take recourse to the appellate remedy, if he is so advised and if
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the appeal is filed within a period of two weeks from today, the appellate authority shall proceed to examine the appeal in accordance with the law on merit, without going into the question of limitation, if any. The present writ petition is disposed of as above. DINESH KUMAR SINGH JUDGE SJ
WP(C) NO. 3358 OF 2024 5 APPENDIX OF WP(C) 3358/2024 PETITIONER EXHIBITS EXHIBIT P1OF ANNUAL RETURN DATED 30.05.2017 SUBMITTED BEFORE 1ST RESPONDENT FOR THE YEAR 2016-17 EXHIBIT P2OF NOTICE NO.32080538305/2016-17 DATED 17.03.2023 ISSUED BY 1ST RESPONDENT U/S.25(1) OF KVAT ACT 2003 FOR 2016-17, ALLEGING NON-PAYMENT OF TAX ON CERTAIN PURCHASE BY A SUPPLIER AND IN PROPOSING TO ASSESS ENTIRE TURNOVER AT 5% FOR WANT OF DGFT CERTIFICATE FROM SUPPLIERS EXHIBIT P3OF REPLY DATED 05.04.2023 ALONG WITH ANALYSIS OF 1 AND 5 % SALE OF GOLD BULLION FOR 2016-17, SUBMITTED BEFORE 1ST RESPONDENT, IN REQUESTING TO ARRANGE THE SUPPLIER FOR CROSS EXAMINATION EXHIBIT P4OF REPLY DATED 27.03.2023 SUBMITTED AGAINST EXT-P2 NOTICE, BEFORE 1ST RESPONDENT, TO MAKE ENQUIRY WITH CONCERNED SUPPLIERS ALONG WITH A FACILITY FOR CROSS EXAMINATION TO PROVE PURCHASE OF 1% BULLION FROM REGISTERED DEALERS UNDER DGFT CERTIFICATION EXHIBIT P5OF JUDGMENT PASSED BY THE HON'BLE EXT-P4 REPLY. EXHIBIT P6OF JUDGMENT PASSED BY THE HON'BLE EXHIBIT P7OF ORDER NO.32080538305/2016-17 DATED 29.05.2023 PASSED BY 1ST RESPONDENT U/S.25(1) KVAT ACT FOR 2016-17, WITHOUT CONSIDERING REQUESTS MADE IN EXT-P4 REPLY AND EXT P5 AND P6 DECISIONS RELIED. EXHIBIT P8OF APPLICATION DATED 16.06.2023 SUBMITTED BEFORE 1ST RESPONDENT FOR RECTIFICATION OF MISTAKE U/S.66 TO KVAT ACT, IN EXT P7 ORDER COMPLETED FOR 2016-17. EXHIBIT P9OF JUDGMENT DATED 04.07.2023 IN WP© NO.20983 OF 2023 PASSED BY THIS HON'BLE COURT IN DIRECTING 1ST RESPONDENT TO
WP(C) NO. 3358 OF 2024 6 CONSIDER AND DISPOSE OF EXT P8 APPLICATION AFTER ADVERTING TO EXT P5 AND P6 JUDGMENTS. EXHIBIT P10OF ORDER DATED 27.12.2023 ISSUED BY 1ST RESPONDENT, WHICH WAS SERVED TO PETITIONER ON 05.01.2024 IN REJECTING EXT P8 APPLICATION. EXHIBIT P11OF INFORMATION DATED 10.01.2024 PROVIDED FROM THE OFFICE OF 1ST RESPONDENT TO PETITIONER UNDER RIGHT TO INFORMATION ACT, 2005, IN PROVIDING COPIES OF NOTICE DATED 26.09.2023 ISSUED TO ENTIRE SUPPLIERS OF 1% PURCHASE OF BULLION FOR 2016-17 AND ALSO STATING RECEIPT OF DGFT CERTIFICATE FROM ENTIRE SUPPLIERS. EXHIBIT P12OF JUDGMENT DATED 01.11.2022, PASSED BY THIS HON'BLE COURT OF IDENTICAL MATTER IN WP(C) NO.34555 OF 2022, IN RESTORING THE RECTIFICATION APPLICATION AND IN DIRECTING TO TAKE FRESH DECISION.
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.