Diebold Nixdorf INDIA Private Limited vs. The Assistant Commissioner, Special Circle-Ii - Kerala High Court, 04 December 2019

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR WEDNESDAY, THE 04TH DAY OF DECEMBER 2019 / 13TH AGRAHAYANA, 1941 WP(C).No.26968 OF 2019(U) PETITIONER/S: DIEBOLD NIXDORF INDIA PRIVATE LIMITED [FORMERLY DIEBOLD SYSTEMS (PVT.) LIMITED], “SHRISHTI”, 28/993 A, PONNETH TEMPLE ROAD, KADAVANTHRA, COCHIN-682020, ERNAKULAM DISTRICT, REPRESENTED BY MR.BABU CHIDAMBARAM - AUTHORISED SIGNATORY. BY ADVS. SRI.JOSEPH JERARD SAMSON RODRIGUES SRI.ROVIN RODRIGUES RESPONDENT/S: 1 THE ASSISTANT COMMISSIONER SPECIAL CIRCLE-II, STATE GOODS AND SERVICES TAX DEPARTMENT, PIN-682015, ERNAKULAM DISTRICT. 2 THE COMMISSIONER, 9TH FLOOR, TAX TOWERS, STATE GOODS AND SERVICES TAX DEPARTMENT, KARAMANA, PIN-695002, THIRUVANANTHAPURAM DISTRICT. GOVERNMENT PLEADER DR.THUSHARA JAMES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.12.2019, ALONG WITH WP(C).26977/2019(V), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR WEDNESDAY, THE 04TH DAY OF DECEMBER 2019 / 13TH AGRAHAYANA, 1941 WP(C).No.26977 OF 2019(V) PETITIONER/S: DIEBOLD NIXDORF INDIA PRIVATE LIMITED [FORMERLY DIEBOLD SYSTEMS (PVT.) LIMITED], “SHRISHTI”, 28/993 A, PONNETH TEMPLE ROAD, KADAVANTHRA, COCHIN-682020, ERNAKULAM DISTRICT, REPRESENTED BY MR.BABU CHIDAMBARAM - AUTHORISED SIGNATORY. BY ADVS. SRI.JOSEPH JERARD SAMSON RODRIGUES SRI.ROVIN RODRIGUES RESPONDENT/S: 1 THE ASSISTANT COMMISSIONER, SPECIAL CIRCLE-II, STATE GOODS AND SERVICES TAX DEPARTMENT PIN-682015, ERNAKULAM DISTRICT. 2 THE COMMISSIONER, 9TH FLOOR, TAX TOWERS STATE GOODS AND SERVICES TAX DEPARTMENT, KARAMANA, PIN-695002, THIRUVANANTHAPURAM DISTRICT. GOVERNMENT PLEADER DR.THUSHARA JAMES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.12.2019, ALONG WITH WP(C).26968/2019(U), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).Nos.26968 & 26977 OF 2019 3

JUDGMENT [ WP(C).26968/2019, WP(C).26977/2019 ] As both these writ petitions involve a common issue, they are taken up for consideration together and disposed by this common judgment.

The petitioner is an assessee under the KVAT Act and has approached this Court through the present writ petitions seeking a revision of returns filed for the assessment years 2015-16 and 2016-17, respectively. The revision of returns was sought for correcting certain mistakes that allegedly crept by way of omission while uploading the values of certain stock transfers, purchases and works contract.

Through a counter affidavit filed on behalf of the 1st respondent, it is stated that the revision of returns sought for by the petitioner cannot be permitted since penalty proceedings were initiated against the petitioner for the said assessment years. Copies of the penalty orders passed against the petitioner have also been produced as Annexures along with the counter affidavit filed on behalf of the 1st respondent. Reliance is then placed on the specific provisions of the proviso to Section 42(2) which clearly mandates that the provision for revision of returns will not apply to a dealer against whom penal action is initiated in respect of any omission or mistake under the provisions of the KVAT Act.

A Reply affidavit has been filed by the petitioner attempting to distinguish his case on facts by contending that the penalty orders stated to have been passed against him were not communicated to him and therefore the WP(C).Nos.26968 & 26977 OF 2019 4 respondents cannot rely on the said order to defeat the legitimate rights of the assessee.

I have heard the learned counsel for the petitioner and also 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 it is not in dispute that penal proceedings were initiated against the petitioner for the assessment years in question and penalty orders have also been passed thereafter. While it may be the petitioner's case that the penalty orders were not communicated to him, in my view the very initiation of the penalty proceedings deprived the petitioner of his right to revise the returns for the assessment years in question. The non-service of the penalty orders may at best be a ground for the petitioner to impugn the penalty order, but it cannot take away from the fact that penalty proposals were initiated against the petitioner during the relevant time. I, therefore, find that the prayer sought for in the writ petitions cannot be granted. These writ petitions, therefore, fail and are accordingly dismissed. A.K.JAYASANKARAN NAMBIAR JUDGE WP(C).Nos.26968 & 26977 OF 2019 5 APPENDIX OF WP(C) 26968/2019 PETITIONER'S/S EXHIBITS: EXHIBIT P1OF THE LETTER DATED 23.04.2018, SEEKING PERMISSION TO REVISE THE RETURNS FOR THE ASSESSMENT YEAR 2015-2016. EXHIBIT P2OF THE LETTER DATED 27.09.2019, SEEKING PERMISSION TO REVISE THE RETURNS FOR THE ASSESSMENT YEAR 2015-2016. WP(C).Nos.26968 & 26977 OF 2019 6 APPENDIX OF WP(C) 26977/2019 PETITIONER'S/S EXHIBITS: EXHIBIT P1OF THE REQUEST LETTER DATED 27.09.2019, SEEKING PERMISSION TO REVISE THE RETURNS FOR THE ASSESSMENT YEAR 2016- 2017.