Nikunjam Constructions PVT.LTD. vs. Assistant Commissioner Of State Tax - Kerala High Court, 10 October 2019

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR THURSDAY, THE 10TH DAY OF OCTOBER 2019/18TH ASWINA, 1941 W.P(C).No.10623 OF 2019(C) PETITIONER: NIKUNJAM CONSTRUCTIONS PVT.LTD. INDRAPRASTHAM, PATTOM-KAWDIAR ROAD, THIRUVANANTHAPURAM-695004, REPRESENTED BY ITS MANAGING DIRECTOR S.KRISHNA KUMAR. BY ADVS.SRI.S.ANIL KUMAR (TRIVANDRUM) SRI.M.RAJAGOPAL RESPONDENTS: 1 ASSISTANT COMMISSIONER OF STATE TAX, STATE GOODS AND SERVICES TAX DEPARTMENT, WORKS CONTRACT, 2ND FLOOR, TAX TOWERS, KARAMANA, THIRUVANANTHAPURAM-695002. 2 THE STATE TAX OFFICER, SQUAD NO.VII, STATE GOODS AND SERVICE TAX DEPARTMENT, THIRUVANANTHAPURAM AT NEYYATTINKARA-695121. BY SRI.THUSHARA JAMES, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No.10623/2019 : 2 :

J U D G M E N T The petitioner has approached this Court challenging Ext.P15 penalty order passed against him under the KVAT Act. The essential contention raised by the petitioner is that, before passing Ext.P15 order, the petitioner had not been given the documents sought for so as to prefer an effective reply to the penalty proposal, and therefore, the said order is vitiated by a non-compliance with the rules of natural justice.

Through a detailed counter affidavit filed on behalf of the 2 nd respondent, the details of the material that was furnished to the petitioner in response to his request for such material are given, and a perusal of the counter affidavit clearly shows that the petitioner was given all the material that was seized from him, and relied against him, for the purposes of verification and filing his objection to the penalty proposal. It is also clear that the petitioner was afforded an opportunity of hearing before passing the penalty order. Taking note of the said averments in the counter affidavit, and finding that Ext.P15 order does not suffer from any juri ictional error and is not vitiated

W.P.(C).No.10623/2019 : 3 : on account of any non-compliance with the rules of natural justice, I am of the view that the challenge in the writ petition against Ext.P15 order cannot be legally sustained. This is more so because the petitioner has an effective alternate remedy against Ext.P15 order before the Appellate Authority under the KVAT Act. Resultantly, without prejudice to the right of the petitioner to move the Appellate Authority, the writ petition, in its challenge against Ext.P15 order, is dismissed. Taking note of the submission of the learned counsel for the petitioner that that the petitioner would require some time to move the Appellate Authority, I direct that recovery steps for recovery of amounts confirmed against the petitioner by Ext.P15 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. The petitioner shall produce a copy of the writ petition together with a copy of this judgment before the Appellate Authority, for further action. A.K.JAYASANKARAN NAMBIAR JUDGE prp/10/10/19

W.P.(C).No.10623/2019 : 4 : APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 COPY OF THE SHOP INSPECTION REPORT DATED 30.8.2014. EXHIBIT P2 COPY OF RECEIPT DATED 30.8.2014 FOR THE RECOVERY OF THE RECORDS. EXHIBIT P3 COPY OF NOTICE DATED 7.10.2014 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P4 COPY OF NOTICE DATED 22.2.2019 ISSUED BY THE 2ND RESPONDENT UNDER S.67 OF THE ACT FOR THE YEAR 2012-13. EXHIBIT P4 (A) COPY OF NOTICES DATED 22.2.2019 ISSUED BY THE 2ND RESPONDENT UNDER S.67 OF THE ACT FOR THE YEAR 2013-14. EXHIBIT P4 (B) COPY OF NOTICE DATED 22.2.2019 ISSUED BY THE 2ND RESPONDENT UNDER S.67 OF THE ACT FOR THE YEAR 2014-15. EXHIBIT P5 COPY OF LETTER DATED 2.3.2019 ADDRESSED TO THE 2ND RESPONDENT. EXHIBIT P6 COPY OF REPLY DATED 11.3.2019 OF THE 2ND RESPONDENT. EXHIBIT P7 COPY OF LETTER DATED 11.3.2019 ADDRESSED TO THE 2ND RESPONDENT. EXHIBIT P8 COPY OF NOTICE DATED 2.3.2019 ISSUED BY THE 1ST RESPONDENT UNDER SECTION 25(1) OF THE ACT.

W.P.(C).No.10623/2019 : 5 : EXHIBIT P9 COPY OF NOTICE DATED 11.3.2019 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P10 COPY OF LETTER DATED 19.3.2019 ADDRESSED TO THE 2ND RESPONDENT. EXHIBIT P11 COPY OF REPLY DATED 25.3.2019 FILED BEFORE THE 2ND RESPONDENT. EXHIBIT P12 COPY OF LETTER DATED 26.3.2019 ADDRESSED TO THE 2ND RESPONDENT. EXHIBIT P13 COPY OF LETTER DATED 27.3.2019 ADDRESSED TO THE 2ND RESPONDENT. EXHIBIT P14 COPY OF JUDGMENT DATED 1.4.2019 OF THIS HON'BLE COURT IN W.P(C).NO.7884 OF 2019. EXHIBIT P15 COPY OF ORDER DATED 30.3.2019 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P16 A COPY OF THE NOTICE DATED 30-08-2014 ISSUED BY THE INTELLIGENCE OFFICER, SQUAD NO.VII, NEYYATTINKARA. EXHIBIT P17 A COPY OF THE LETTER DATED 30-08-2014 FILED BY THE PETITIONER IN SUPPORT OF THE DOCUMENTS. EXHIBIT P18 A COY OF THE PAGE 7 OF RECOVERY 9 FROM THE RECOVERED CD. EXHIBIT P19 A COPY OF TEH GROUP SUMMARY OF SALES ACCOUNT FOR THE YEAR 2013-14. EXHIBIT P20 A COPY OF THE RETURN FILED BY THE PETITIONER FOR THE YEAR 2012-13. W.P.(C).No.10623/2019 : 6 : EXHIBIT P21 RESPONDENTS EXHIBITS: A COPY OF THE PROFIT AND LOSS ACCOUNT IN RESPECT OF EACH PROJECT AND THE TURNOVER CONCEDED IN THE ANNUAL RETURN. NIL. //// P.S. TO JUDGE