Smt.Lovegi Karunakaran vs. State Tax Officer - Kerala High Court, 02 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 MONDAY, THE 02ND DAY OF DECEMBER 2019 / 11TH AGRAHAYANA, 1941 WP(C).No.32645 OF 2019(E) PETITIONER: SMT.LOVEGI KARUNAKARAN AGED 45 YEARS PROPRITRIX, INTER DECORS, SREE KRISHNA TOWERS, HILL PALACE ROAD, THRIPUNITHURA-682 301, ERNAKULAM DISTRICT. BY ADV. SRI.TOMSON T.EMMANUEL RESPONDENTS: 1 STATE TAX OFFICER STATE GOODS AND SERVICES TAX DEPARTMENT, 1ST CIRCLE, THRIPPUNITHURA-682 301. 2 STATE TAX OFFICER, STATE GOODS AND SERVICES TAX DEPARTMENT, SQUAD NO.1, EDAPPALLY, COCHIN-682 024. 3 INSPECTING ASSISTANT COMMISSIONER, STATE GOODS AND SERVICES TAX DEPARTMENT, CIVIL STATION, KAKKANAD, COCHIN-682 030. BY GOVERNMENT PLEADER SMT.THUSHARA JAMES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.32645 OF 2019(E) 2

JUDGMENT The challenge in the Writ Petition is against Ext.P7 assessment order passed in relation to the petitioner under the Kerala Value Added Tax Act (hereinafter referred to as 'the KVAT Act'). It is the case of the petitioner that the assessment order was passed without considering the turn over that was shown by the petitioner in the revised return that was filed pursuant to the compounding of the offence under the KVAT Act. I notice from Ext.P7 assessment order however that the assessing authority has invoked the proviso to Section 25, which indicates that where a pattern of suppression is noticed the assessing authority shall proceed with the best judgment assessment in accordance with the provisions under Sections 24 and 25 of the KVAT Act as the case may be. In the case of the petitioner, the assessing authority finds that he had effected unaccounted purchases during the month of May 2016, October 2016 and February 2017, and hence, there was a pattern of suppression established in this case. In my view, the said finding of the assessing authority is one based on the facts of the case and cannot be said to be without juri iction. Accordingly, I find that there is no justification for interfering with Ext.P7 assessment order in these proceedings under Article 226 of the Constitution of India. The petitioner will have to be relegated to his alternative remedy of filing an appeal against Ext.P7

WP(C).No.32645 OF 2019(E) 3 assessment order before the appellate authority under the KVAT Act. I, therefore, dismiss the Writ Petition in its challenge against Ext.P7 order without prejudice to the right of the petitioner to move the appellate authority under the KVAT Act for a redressel of her grievance. Taking note of the submission of the learned counsel for the petitioner that she would require sometime to move the appellate authority, I direct that recovery steps for recovery of amounts confirmed against the petitioner by Ext.P7 order shall be kept in abeyance for a period of three weeks so as to enable the petitioner to move the appellate authority, in the meanwhile. A.K.JAYASANKARAN NAMBIAR

JUDGE mns

WP(C).No.32645 OF 2019(E) 4 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF ORIGINAL ANNUAL RETURN DATED 15.06.2017 SUBMITTED UNDER KVATIS FOR 2016-

17.

EXHIBIT P2 COPY OF COMPOUNDING ORDER DATED 09.03.2017, COMPLETED BY 2ND RESPONDENT UNDER SECTION 74 OF THE KVAT ACT FOR 2016-17. EXHIBIT P3 COPY OF NOTICE ISSUED FOR 2016-17 UNDER SECTION 25(1) OF KVAT ACT, CONSIDERING EXT.P2 PROCEEDINGS. EXHIBIT P4 COPY OF REPLY SUBMITTED BY PETITIONER AGAINST EXT.P3 NOTICE, BEFORE 1ST RESPONDENT. EXHIBIT P5 COPY OF REVISED ANNUAL RETURN DATED 23.09.2017 SUBMITTED UNDER KVATIS FOR 2016-17 AFTER ISSUING PERMISSION FOR THE SAME BY THE 1ST RESPONDENT. EXHIBIT P6OF REPLY SUBMITTED BEFORE 1ST RESPONDENT AGAINST A NOTICE ISSUED UNDER SECTION 95 OF KVAT ACT. EXHIBIT P7OF ORDER DATED 30.10.2019 SERVED TO PETITIONER BY 1ST RESPONDENT ON 06.11.2019 FOR 2016-17 CONSIDERING EXT.P1 ORIGINAL ANNUAL RETURN. RESPONDENTS EXHIBITS:NIL //// P.A TO JUDGE