Smart Footwear Marketing vs. The Commercial Tax Officer - Kerala High Court, 15 September 2020

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR TUESDAY, THE 15TH DAY OF SEPTEMBER 2020 / 24TH BHADRA, 1942 WP(C).No.18911 OF 2020(L) PETITIONER: M/s.SMART FOOTWEAR MARKETING NADATHARA, MOORKANIKKARA, ERAVIMANGALAM ROAD KOZHUKKULLY.P.O., THRISSUR, REPRESENTED BY ITS MANAGING PARTNER, P.I.ANTO BY ADVS. SRI.HARISANKAR V. MENON SMT.MEERA V.MENON RESPONDENTS: 1 2. 3. THE COMMERCIAL TAX OFFICER 1ST CIRCLE, THRISSUR-680001 THE DEPUTY TAHSILDAR (RR) TALUK OFFICE, THRISSUR-680001 THE ASSISTANT COMMISSIONER FIRST CIRCLE, STATE GOODS AND SERVICES TAX DEPARTMENT THRISSUR-680004 BY GOVERNMENT PLEADER DR THUSHARA JAMES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.18911 of 2020 2

JUDGMENT

The petitioner has approached this Court challenging Ext.P7 order of the assessing authority that rejected an application for rectification of mistake preferred by him. In the Writ Petition, it is the contention of the petitioner that the assessment was completed against him by making huge additions on account of non-filing of audit report in Form 13 & 13A. It is pointed out that the assessing authority could not have made the additions merely on account of non-filing of audit report in Form 13 & 13A since such a course of action was already interdicted by a judgment of this Court produced as Ext.P2 in the Writ Petition. At any rate, the petitioner points out that he had filed the audited statements in Form 13 & 13A, and also approached the assessing authority by filing a rectification of mistake application, so that the assessing authority could rectify the mistake occasioned by him in not noticing Ext.P2 judgment of this Court while completing the assessment. The petitioner thereafter approached this Court through W.P(C).No.7552 of 2020, when by Ext.P6 judgment the assessing authority was directed to consider and pass orders on the rectification of mistake application expeditiously. It would appear that notwithstanding the directions of this Court, the assessing authority passed Ext.P7 order in the rectification of mistake application, taking the view that there was no clerical mistake that required rectification and that the assessee's application for rectification of mistake was essentially a review petition in disguise.

I have heard the learned counsel for the petitioner and the learned Government Pleader for the respondents. On a consideration of the facts and circumstances of the case and the submissions made across the Bar, I find that the reasoning of the assessing authority in Ext.P7 order is legally flawed. While it may appear at first blush that what the petitioner was seeking was essentially a review of the assessment order, in the light Ext.P2 judgment that was passed by this Court as early as in 2014 and which has not been the subject matter of any appeal before the Supreme Court, the assessing authority has to be seen as having ignored a binding precedent while completing the assessment. The said mistake occasioned by the assessing authority has therefore to be seen as an error apparent on the face of the record, which could be corrected through a rectification of mistake application. This is more so because there is no lengthy argument to be advanced by the assessee for the purposes of pointing out the apparent mistake that was occasioned by the assessing authority. Under the said circumstances, I quash Ext.P7 order and dispose the writ petition by directing the 3rd respondent to pass fresh orders on merits in the rectification of mistake application, taking note of the observations in this judgment, and after hearing the petitioner, within two months from the date of receipt of a copy of this judgment. The petitioner shall produce a copy of the writ petition together with a copy of the judgment before the 3rd respondent for further action. A.K.JAYASANKARAN NAMBIAR

JUDGE mns/15.9.2020 APPENDIX PETITIONERS EXHIBITS EXHIBIT -P1 COPY OF ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2015-16 DATED 30.11.2017 EXHIBIT P2- COPY OF THE JUDGMENT IN OT REV.NO49/2014 OF THIS HON'BLE COURT EXHIBIT P3- COPY OF AUDIT REPORT IN FORM NO.13 & 13A OF THE PETITIONER FOR THE YEAR 2015 -16 DATED 15.02.2020 EXHIBIT P4- COPY OF APPLICATION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 15.02.2020 EXHIBIT P5- COPY OF NOTICE IN FORM NO.1 ISSUED BY THE 2ND RESPONDENT DATED 16.10.2019 EXHIBIT P5(A)- COPY OF NOTICE IN FORM NO.10 ISSUED BY THE 2ND RESPONDENT DATED 16.10.2019 EXHIBIT P6- COPY OF THE JUDGMENT IN WP(C).NO.7552/2020 OF THIS HON'BLE COURT DATED 12.03.2020 EXHIBIT P7- COPY OF ORDER ISSUED BY THE 3RD RESPONDENT DATED 13.08.2020 RESPONDENTS EXHIBITS:NIL //// P.A TO JUDGE