Hotel Edassery Mansion vs. State Tax Officer (Intelligence)
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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.M.BADAR THUR AY, THE 18TH DAY OF FEBRUARY 2021 / 29TH MAGHA,1942 WP(C).No.1807 OF 2021(A) PETITIONER: HOTEL EDASSERY MANSION 37/2342, KALOOR ROAD, KATHRIKADAVU, KOCHI 682 017, REP.BY ITS MANAGING PARTNER, SRI. MITHUN DAVIS BY ADV. SRI.TOMSON T.EMMANUEL RESPONDENTS: 1 STATE TAX OFFICER (INTELLIGENCE) SQUAD NO.VI, STATE GOODS AND SERVICES TAX DEPARTMENT, EDAPPALLY, KOCHI 682 024 2 DEPUTY COMMISSIONER STATE GOODS AND SERVICES TAX COMPLEX, SPECIAL CIRCLE- III, THEVARA, KOCHI 682 015 3 DEPUTY COMMISSIONER STATE GOODS AND SERVICES TAX DEPARTMENT, KAKKANADU, ERNAKULAM, KOCHI 682 030 GP- SMT. THUSHARA JAMES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.1807 OF 2021(A) 2 JUDGMENT Dated this the 18th day of February 2021 Heard the learned counsel appearing for the petitioner.
He drew my attention to the notice under Section 45A of the KGST Act, 1963, Ext.P2 and argued that this notice was duly replied by the communication at Ext.P3, where personal hearing was sought. It is further submitted by the learned counsel for the petitioner that the order at Ext.P4 itself shows that bills were produced. However, on the erroneous presumption that bills were not produced, the State Tax Officer (Intelligence) had passed order under Section 45A of the KGST Act, 1963 imposing penalty of Rs.15,83,780/- on the petitioner. The learned counsel for the petitioner submits that position of laws is settled by this Court and therefore, the impugned order, Ext.P4 deserves to be quashed and set aside.
The learned Government Pleader drew my attention to the impugned order and more particularly, the finding of fact recorded by the State Tax Officer in the said order to the effect that the assessee has not produced the sale bills against the order ticket to prove its case. On instructions from the concerned Officer, the learned Government Pleader makes a statement that in the penalty
WP(C).No.1807 OF 2021(A) 3 proceedings which ultimately culminated into passing of order at Ext.P4, no sale bills were produced by the petitioner. Thus, the matter rest on disputed question of facts, as the petitioner is stating that the bills were produced, whereas the learned Government Pleader appearing for the respondents submits that sale bills were not produced during the penalty proceedings.
The petitioner has also prayed for opportunity of personal hearing, which according to him was not granted. In this view of the matter, the proper forum for adjudicating the correctness of the impugned order at Ext.P4 would be the statutory appellate authority as provided by Section 35 of the Kerala General Sales Tax Act. The petition is therefore dismissed in the wake of alternative and most efficacious statutory appellate remedy available to the petitioner. A.M.BADAR N //// PA to Judge JUDGE
WP(C).No.1807 OF 2021(A) 4 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1OF SHOP INSPECTION REPORT NO.098369 DATED 6.7.2019 RECORDED BY 1ST RESPONDENT EXHIBIT P2OF NOTICE NO.VI/INS/2/2019-20 DATED 13.7.2020 ISSUED U/S.45A OF THE KGST ACT, PROPOSING PENALTY IN ESTIMATING TURNOVER EXHIBIT P3OF REPLY DATED 24.8.2020 SUBMITTED AGAINST EXT. P2 NOTICE BEFORE 1ST RESPONDENT, ALONG WITH SUPPORTING DOCUMENTS EXHIBIT P3 (A)OF SETTLEMENT SUBMITTED ALONG WITH EXTP3 REPLY FOR THE CALCULATION OF GROSS PROFIT EXHIBIT P4OF ORDER DATED 30.11.2020 SERVED TO PETITIONER ON 30.12.2020 BY 1ST RESPONDENT, IMPOSTING PENALTY U/S.45 A TO THE KGST ACT IN ESTIMATING PROFIT EXHIBIT P5OF JUDGMENT DATED 1.1.2014 IN ST REV. NO.46 OF 2013 PASSED BY THE DIVISION BENCH OF THIS HON'BLE COURT IN OBSERVING FORMULA FOR ARRIVING GROSS PROFIT EXHIBIT P6OF JUDGMENT DATED 6.9.2018 IN OT REV. NO.124 OF 2014 PASSED BY DIVISION BENCH OF THIS HON'BLE COURT, IN SETTING ASIDE ESTIMATION OF TURNOVER MADE BY INTELLIGENCE OFFICER TO IMPOSE PENALTY EXHIBIT P7OF JUDGMENT DATED 20.3.2018 IN WRIT. APPEAL NO.679 OF 2018 PASSED BY THIS HON'BLE COURT, IN HOLDING THAT WHEN AVERAGE GROSS PROFIT TAKEN DEFINITELY IT LEADS TO ESTIMATION FOR IMPOSING PENALTY, NOT PERMISSIBLE. EXHIBIT P8OF INTERIM ORDER DATED 23.11.2020 PASSED BY THIS HON'BLE COURT IN WP(C) NO.25665 OF 2020 ON SIMILAR SET OF FACT, NOW PENDING BEFORE THIS HON'BLE COURT.
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.