Manappuram Finance LTD. vs. The Asst. Commissioner Of State Tax - Kerala High Court, 04 October 2018

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU THURSDAY ,THE 04TH DAY OF OCTOBER 2018 / 12TH ASWINA, 1940 WP(C).No. 31512 of 2018 PETITIONER/S: MANAPPURAM FINANCE LTD., VALAPPAD,THRISSUR,REP BY ITS GENERAL MANAGER,M.V BABU,S/O M.T VARGHESE, AGED 68. BY ADVS. SRI.HARISANKAR V. MENON SMT.MEERA V.MENON RESPONDENT/S: 1 THE ASST. COMMISSIONER OF STATE TAX, STATE GOODS AND SERVICES TAX DEPARTMENT, SPECIAL CIRCLE, THRISSUR-680001. 2 THE DEPUTY COMMISSIONER (APPEALS) DEPARTMENT OF COMMERCIAL TAXES, THRISSUR-680 001. 3 THE INSPECTING ASST. COMMISISONER OF STATE TAX STATE GOODS AND SERVICE TAX DEPARTMENT, THRISSUR-6. OTHER PRESENT: GP. DR. THUSHARA JAMES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.10.2018, ALONG WITH WP(C).24750/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -2- W.P.(C). Nos 31512 & 31523 of 2018 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU THURSDAY ,THE 04TH DAY OF OCTOBER 2018 / 12TH ASWINA, 1940 WP(C).No. 31523 of 2018 PETITIONER/S: M/S.MANAPPURAM FINANCE LTD., VALAPAD,THRISSUR,REPRESENTED BY ITS GENERAL MANAGER M.V BABU, S/O. M.T VARGHESE BY ADVS. SRI.HARISANKAR V. MENON SMT.MEERA V.MENON RESPONDENT/S: 1 THE ASST. COMMISSIONER OF STATE TAX, STATE GOODS AND SERVICE TAX DEPARTMENT,SPECIAL CIRCLE,THRISSUR 680001 2 THE DEPUTY COMMISSIONER (APPEALS) DEPARTMENT OF COMMERCIAL TAXES, THRISSUR 680 001 3 THE INSPECTING ASST. COMMISSIONER OF STATE TAX, STATE GOODS AND SERVICE TAX DEPARTMENT, THRISSUR 6 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -3- W.P.(C). Nos 31512 & 31523 of 2018

JUDGMENT The petitioner, an assessee under the Kerala Value Added Tax Act (KVAT Act), first suffered an assessment order for 2010-11 and 2011-12. Aggrieved, the petitioner filed an appeal and invited Ext.P2 order. The appellate authority through Ext.P2 has virtually allowed the petitioner's appeal, but observed as follows: “As submitted by the learned Chartered Accountant, the contextual meaning has to be considered. It is also seen that none of the submissions on the above line have been taken before the assessing authority. The assessing authority is therefore directed to verify the above submissions. Once again and if the sale has suffered tax in the hands of the appellant, the assessing authority is directed to grant credit for the tax paid on the purchase by the appellant.”

As the matter stood remanded, the assessing authority issued a notice to the petitioner requiring it to produce books of account. The petitioner did not produce. Instead it took the plea of limitation. Therefore, the assessing authority, for want of records, restored the order that had earlier been interfered with by the appellate authority. Aggrieved, the petitioner has filed this writ

-4- W.P.(C). Nos 31512 & 31523 of 2018 petition.

After elaborate arguments on either side, the petitioner's counsel fairly submits that the petitioner has nothing to hide. He will produce the records the assessing authority required ; so the matter may be remanded. At any rate, he has submitted that the appellate order is sweeping and conclusive. According to him, it has allowed the petitioner's every plea.

On the other hand, the learned Government Pleader objected to any remand. According to her, the petitioner's belated concession does not improve the situation. In other words, it amounts to nullifying the impugned Ext.P5 assessment order for no valid reason except for the petitioner's conceding belatedly before this Court. She has also submitted that the petitioner has an efficacious alternative remedy.

Appealing as the Government Pleader's submissions is, I do not deem it desirable to relegate the petitioner to an appellate forum. After all, under Article 226 of the Constitution of India, it is a self-imposed limitation and, under justifiable circumstances, this -5- W.P.(C). Nos 31512 & 31523 of 2018 Court can as well, disregard the plea of alternative remedy. I reckon, this is one such instance, where there is no lis to be adjudicated given the petitioner's concession.

It only serves the ends of justice if the petitioner suffers any order after a full opportunity. The opportunity he earlier had may have not been utilised for the petitioner laboured under an impression that Ext.P2 appellate order is conclusive and the assessment authority's demand for production of records travels beyond his remit as fixed in the appellate order.

I, too, find an element of ambiguity in the appellate order. In one breath, it accepts the petitioner's entire contention. In the other breath, it allows the assessing authority to examine the petitioner's plea. Thus, whether that examination includes summoning of the records afresh is a question that has no easy answer. Given that ambiguity, I reckon that the petitioner's initial refusal is condonable. In the end, without adverting to the merits, I dispose of the writ petition, setting aside the Ext.P5 assessment order and remanding the -6- W.P.(C). Nos 31512 & 31523 of 2018 matter to the assessing officer. So on the petitioner's producing the records, it will adjudicate the issue strictly confining to the observations made in the Ext.P2 appellate order. DAMA SESHADRI NAIDU JUDGE das WP(C) No. 31512/2018 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF ASSESSMENT ORDER ISSUED BY THE IST RESPONDENT FOR THE YEAR 2011-12 DATED30.6.2012. EXHIBIT P2 COPY OF ORDER ISSUED BY THE DEPUTY COMMISSIONER (APPEALS), ERNAKULAM FOR THE YEARS 2010-11 & 2011-12 DATED 30.6.2015. EXHIBIT P3 COPY OF NOTICE IN FROM NO.17 ISSUED BY THE IST RESPONDENT DATED 20.12.2017. EXHIBIT P4 COPY OF LETTER SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT DATED 28.12.2017. EXHIBIT P4 A COPY OF LETTER SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT DATED 2.1.2018. -7- W.P.(C). Nos 31512 & 31523 of 2018 EXHIBIT P4 B COPY OF LETTER SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT DATED 30.8.2018. EXHIBIT P5 COPY OF ORDER ISSUED BY THE IST RESPONDENT DATED 13.9.2018. WP(C). No. 31523/2018 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2010-11 EXHIBIT P2 COPY OF ORDER ISSUED BY THE DEPUTY COMMISSIONER (APPEALS), ERNAKULAM FOR THE YEARS 2010-11 And 2011-12 EXHIBIT P3 COPY OF NOTICE IN FORM NO. 17 ISSUED BY THE 1ST RESPONDENT EXHIBIT P4 COPY OF LETTER SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT EXHIBIT P4 A COPY OF LETTER SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT EXHIBIT P5 COPY OF ORDER ISSUED BY THE 1ST RESPONDENT.