Omega Rubber Products vs. The Commercial Tax Officer
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Cause title — parties, addresses and appearances
JUDGMENT The prayers in the above writ petition civil are as follows: (I) To direct the 1st respondent to permit the petitioner to revise the returns for 2013-14 and 2014-15 as prayed for in Ext.P3 forthwith by the issue of a writ of mandamus or such other writ or order or direction.
Heard Sri. Harisankar V. Menon, learned counsel appearing for the petitioner and Smt. Thushara James, learned Government Pleader appearing for the respondents.
The case projected in this writ petition civil are as follows: That the petitioner is in the manufacture and sale of tread rubber and compound rubber. It is an assessee under the KVAT Act on the rolls of the 1st respondent herein. In the returns filed under the KVAT Act for the years 2013-14 and 2014-15, the turnover in respect of the above two items though available separately in the books of accounts etc, are shown under one heading with respect to tread rubber. The central Excise Department has sought to disallow the threshold SSI exemption limit on the allegation that the turnover has crossed Rs.1.5 crores. The above assumption is taken on the basis of the return filed under the KVAT Act. Therefore, petitioner has sought to rectify the returns for 2013-14 and 2014-15 under the KVAT Act
WP(C).No.1392 OF 2020(Y) 3 by filing Ext.P3 application before the 1st respondent herein. But in spite of repeated requests in that regard, the 1st respondent has not acted on the same. It is in the light of these averments and contentions, petitioner has filed this writ petition with the afore mentioned prayers.
After hearing both sides, this Court is of the view that the matter in issue is covered by the dictum laid down by the Division Bench of this Court in judgments as in the Commercial Tax Officer Vs. Varghese [2018 (3) KLT 468], wherein it has been held by this Court in para 15 thereof that the enabling provisions contained in provisions as in section 21(2) and 22(9) of the KVAT Act, 2003 mandates that on a revision of return being attempted to as provided therein, the assessing authority is obliged to accept it and so, there is no prohibition in attempting a revision of return after the time specified, if no penal proceedings are initiated and that what is required in such circumstances, is a practical and pragmatic approach, wherein the Assessing Authority looks into the bona fides of the claim and decides whether permission can be granted or not. The Assessing Officer would have the authority to examine such claims even beyond the period and decide the question in accordance with well established principles of law and to ensure that the attempt is not to cover up or get cover a penal provision or avoid the penal consequences of detection. It would be profitable to refer to paras 9 and 15 of the above said
WP(C).No.1392 OF 2020(Y) 4 decision of this Court in Varghese case (supra) [2018 (3) KLT 468] which reads as f0llows:
“9. Before we deal with the legal contentions, we cannot but fully endorse the observations made by the learned Single Judge in the judgment in W.P.(C) No. 22147/2017. It is high time, the officers of the Department rose up from their mediocre mind set and became facilitators of finance and commerce aiding the economic advancement of the Nation rather than reducing themselves to mere tax collectors and target achievers. The taxing statute is not an instrument of oppression and has to be treated as one enabling trade and commerce; which at the same time fetch revenue for the State to be employed in discharging its various activities and obligations to the citizen. Without enterprise, there would be no revenue and if the source is choked, it would be akin to killing the proverbial hen that lays the golden eggs. It is time the Department and its officers woke up to the economic realities and resort to a more practical and pragmatic approach in proceeding under the enforcing the tax enactment to have a complete make over from the image of oppressors to that of facilitators.”
The enabling provisions mandates that on a revision of return being attempted to as provided therein, the Assessing Authority is obliged to accept it. At the risk of repetition, it has to be stated that there is no prohibition in attempting a revision of return after the time specified, if no penal proceeding is initiated. What would be required in such circumstances, as was earlier noticed, is a practical and pragmatic approach, wherein the Assessing Authority looks into the bona fides of the claim and decides whether a permission can be granted or not. The Assessing Authority looks definitely would have the authority to examine such claims even beyond the period and decide the question in accordance with well established principles of law and ensure that the attempt is not to cover up or get over a penal provision or avoid the penal consequences of detection.”
Accordingly it is ordered that the 1st respondent will take up the matter in Ext.P3 application made by the petitioner seeking revision of the returns filed for the assessment years 2013-14 and 2014-15 under the provisions of the Kerala Value Added Tax, 2003. The 1st respondent will
WP(C).No.1392 OF 2020(Y) 5 afford reasonable opportunity of being heard to the petitioner through authorised representative/counsel if any and then will render a considered decision on the plea made in Ext.P3 application in the light of the legal principles laid down by this Court in decisions as in Commercial Tax Officer Vs. Varghese [2018 (3) KLT 468] (DB). Orders in that regard shall be duly rendered by the 1st respondent on Ext.P3 application without much delay, preferably within a period of 6 weeks from the date of production of a certified copy of this order. With these observations and directions, the Writ Petition (Civil) stands finally disposed of. ALEXANDER THOMAS N //// PA to Judge JUDGE
WP(C).No.1392 OF 2020(Y) 6 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF NOTICE ISSUED BY THE DY. DIRECTOR, GOODS AND SERVICES TAX INTELLIGENCE, KOCHI- 17 DATED 08.01.2019. EXHIBIT P2 COPY OF OBJECTION FILED BY THE PETITIONER DATED 05.02.2019. EXHIBIT P3 COPY OF APPLICATION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 27.06.2019. EXHIBIT P4 COPY OF CERTIFICATE ISSUED BY THE 1ST RESPONDENT DATED 07.09.2019. EXHIBIT P5 COPY OF REPRESENTATION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 25.09.2019. EXHIBIT P6 COPY OF REPRESENTATION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 10.08.2019.
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.