Kalyan Jewellers vs. The Asst.Commissioner(Assessment) - Kerala High Court, 28 March 2019

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI THURSDAY ,THE 28TH DAY OF MARCH 2019 / 7TH CHAITHRA, 1941 WP(C).No. 9596 of 2019 PETITIONER/S: KALYAN JEWELLERS, BEACH ROAD, KOLLAM-691 001, REPRESENTED BY ITS DIRECTOR T.K. SEETHARAM. BY ADVS. SRI.S.ANIL KUMAR (TRIVANDRUM) SRI.M.RAJAGOPAL RESPONDENT/S: 1 THE ASST.COMMISSIONER(ASSESSMENT) SPECIAL CIRCLE, STATE GOODS AND SERVICES TAX DEPARTMENT, ASRAMOM, KOLLAM-691 002 2 THE STATE TAX OFFICER (IB)-II, STATE GOODS AND SERVICES TAX DEPARTMENT, ASRAMOM, KOLLAM-691 002 3 THE DEPUTY COMMISSIONER (APPEALS), STATE GOODS AND SERVICES TAX DEPARTMENT, TAX TOWERS, ASRAMOM, KOLLAM-691 002 OTHER PRESENT: SRI. C.K.GOVINDAN, SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No. 9596/2019 -2-

J U D G M E N T Heard Sri S. Anil Kumar, the petitioner's counsel and Sri C.K. Govindan, the learned Senior Government Pleader.

The petitioner aggrieved by assessment orders in Ext.P1 and P1(a) filed appeals (Exts.P3 and P3(a)). According to the petitioner the appellate authority did not take up for consideration the appeals and in the interregnum Exts.P5 and P5(a) notices under Section 25(1) of KVAT Act are issued. The petitioner prays for a direction to dispose of the appeals (Exts.P3 and P3(a)) and in the meantime stay all further proceedings in Exts.P5 and P5(a).

According to the learned counsel for the petitioner the proceedings now initiated through Exts.P5 and P5(a) is dependent on the outcome of the appeals and in the meantime if Exts.P5 and P5(a) are finalized, the petitioner would suffer hardship and injustice.

The learned Senior Government Pleader contends that -3- the understanding of the petitioner on the parallel proceedings which is under appeal and the enquiry under Exts.P5 and P5(a) is completely mistaken. According to him, these are independent and the notices in Exts.P5 and P5(a) are issued based on sufficient materials available in this behalf. The petitioner certainly can file objections and participate in the enquiry initiated through Exts.P5 and P5(a). He invites the attention of the Court to the unreported decision in W.A. No.688 of 2017 in W.P.(C) No.8578 of 2017, particularly the operative portion which reads as follows and opposes granting stay of further proceedings under Exts.P5 and P5(a). “The learned counsel for the appellant has not referred to any provision of law or any judicial precedent to the effect that during pendency of the proceedings in connection with penalty, the assessment proceedings have to be kept pending. In the said circumstances, interference is declined and the Writ Appeal is dismissed, without prejudice to the rights and liberties of the appellant to proceed with further steps so as to establish the facts and figures in the petition stated as preferred in connection with the assessment proceedings. The assessment proceedings shall be -4- finalized only after giving an opportunity of hearing to the appellant/assessee.“ He has no objection for directing disposal of Exts.P3 and P3(a) appeals.

I have perused the record and noted the submissions of the learned counsel appearing for the parties. The learned Division Bench while disposing of W.A. No.688 of 2017, as noted above, has stated on the nature of assessment and the penalty proceedings initiated. Therefore, keeping in view the conclusion in W.A. No.688 of 2017 excerpted in the judgment, this Court is of the view that the writ petition is disposed of by the following order: The respondent is directed to dispose of Exts.P3 and P3(a) appeals as expeditiously as possible, preferably within four weeks from today. S.V.BHATTI JUDGE jjj -5- APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF PERMISSION DATED 07.12.2012 GRANTED BY THE 1ST RESPONDENT UNDER SECTION 8 OF THE ACT FOR THE YEAR 2012-13. EXHIBIT P1 A COPY PERMISSION DATED 13.01.2014 GRANTED BY THE 1ST RESPONDENT UNDER SECTION 8 OF THE ACT FOR THE YEAR 2013-14 EXHIBIT P2 COPY OF PENALTY ORDER DATED 31.03.2018 ISSUED BY THE 2ND RESPONDENT U/S. 67 FOR THE YEAR 2012-13. EXHIBIT P2 A COPY OF ORDER DATED 31.03.2018 ISSUED BY THE 2ND RESPONDENT U/S. 67 FOR THE YEAR 2013-14. EXHIBIT P3 COPY OF APPEAL MEMORANDUM AND GROUNDS OF APPEAL FILED AGAINST EXT. P2 BEFORE THE 3RD RESPONDENT. EXHIBIT P3 A COPY OF APPEAL MEMORANDUM AND GROUNDS OF APPEAL FILED AGAINST EXT. P2 (A) BEFORE THE 3RD RESPONDENT. EXHIBIT P4 COPY OF NOTICE DATED 28.09.2018 ISSUED BY THE 1ST RESPONDENT UNDER SECTION 8 (F) (IV) OF THE ACT FOR THE YEAR 2012-13. EXHIBIT P4 A COPY OF NOTICE DATED 28.09.2018 ISSUED BY THE 1ST RESPONDENT UNDER SECTION 8 (F) (IV) OF THE ACT FOR THE YEAR 2013-14. EXHIBIT P5 COPY OF NOTICE DATED 28.02.2019 ISSUED BY THE 1ST RESPONDENT U/S. 25 FOR THE YEAR 2013-14. EXHIBIT P5 A COPY OF NOTICE DATED 28.02.2019 ISSUED BY THE 1ST RESPONDENT U/S. 25 FOR THE YEAR 2013-14. -6- EXHIBIT P6 COPY OF REPLY DATED 05.10.2018 FILED AGAINST EXT. P4 AND P4(A) EXHIBIT P6 A COPY OF REPLY DATED 12.03.2019 FILED AGAINST EXT. P5 & P5(A) The following sentences are added to the operative portion of the judgment dated 28.03.2019 in WP(C)9596/2019(Y) as per order dated 11.04.2019 in WP(C) 9596/2019(Y). “The petitioner is given liberty to file objections to Exts.P4, P4(a), P5 and P5(a) notices. The time, since granted by the Authority is over by 29.03.2019. The petitioner is given three weeks from today”. Joint Registrar