M/S.Hotel Dona Castle vs. State Tax Officer - Kerala High Court, 04 July 2018

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU WEDNESDAY, THE 4TH DAY OF JULY 2018 / 13TH ASHADHA, 1940 WP(C).No. 22240 of 2018 PETITIONER M/S.HOTEL DONA CASTLE, A UNIT OF EDASSERY GROUP OF HOTELS PVT.LTD., KOTTAMUKKU, KOLLAM - 691 001, REPRESENTED BY ITS MANAGING DIRECTOR, SRI.E.J.DAVIS. BY ADV.SRI.TOMSON T.EMMANUEL RESPONDENTS: 1. STATE TAX OFFICER, STATE GOODS AND SERVICE TAX DEPARTMENT, SQUAD NO.II, KOLLAM AT KOTTARAKKARA - 691 506. 2. ASSISTANT COMMISSIONER, STATE GOODS AND SERVICE TAX DEPARTMENT, SPECIAL CIRCLE, KOLLAM - 691 013. 3. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 033. 4. INSPECTING ASSISTANT COMMISSIONER, STATE GOODS AND SERVICES TAX DEPARTMENT, KOLLAM AT KOTTARAKKARA - 691 506. R BY GOVERNMENT PLEADER SHAMSUDHEEN V.K. R BY SREELAL N. WARRIER, SC, CENTRAL BOARD OF EXCISE &AMP; CUSTOMS THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 22240 of 2018 (D) APPENDIX PETITIONER'S EXHIBITS EXHIBIT P1 TRUE COPY OF SHOP INSPECTION REPORT NO.121736 DATED 24/03/2015 CONDUCTED BY 1ST RESPONDENT. EXHIBIT P2 TRUE COPY OF NOTICE ISSUED U/S.45A OF THE KGST ACT 1963, IN PROPOSING TO IMPOSE PENALTY BY ESTIMATING TURNOVER TAX LIABILITY FOR 2014-15 IN CONNECTION WITH EXT.P1 INSPECTION. EXHIBIT P3 TRUE COPY OF REPLY DATED 17/04/2018 SUBMITTED BEFORE 1ST RESPONDENT FOR AN OPTION FOR COMPOUNDING ON THE ACTUAL SUPPRESSION COMPUTED, AGAINST P2 NOTICE. EXHIBIT P4 TRUE COPY OF NOTICE ISSUED BY 1ST RESPONDENT IN FIXING PERSONAL HEARING TO 15/05/2018. TRUE COPY OF APPLICATION DATED 16/03/2018 U/S.43 OF THE KGST ACT, SUBMITTED BEFORE 1ST RESPONDENT PURSUANT

TO EXT.P3 ORDER. EXHIBIT P5OF ARGUMENT NOTE DATED 15/05/2018 SUBMITTED BEFORE 1ST RESPONDENT AT THE TIME OF PERSONAL HEARING AGAINST EXT.P4 NOTICE. AGAINST ON 27/03/2018 AT THE TIME OF PERSONAL HEARING ALLOWED TO EXT.P4 REQUEST, TO CONSIDER THE DECISION OF THIS HON'BLE COURT IN ST.REV.NO.46 AND 51 OF 2013 IN STATE OF KERALA VS.ANTONY ABRAHAM. EXHIBIT P6OF ORDER DATED 21/05/2018 U/S 45A OF THE KGST ACT IN IMPOSING PENALTY WITHOUT CONSIDERING THE RATIO IN ST REV.NO.46 AND 51 OF 2013 IN STATE OF KERALA VS.ANTONY ABRAHAM, PASSED BY DIVISION BRENCH OF THIS HON'BLE COURT ONLY REPRODUCED IN THE ORDER. EXHIBIT P7OF APPLICATION DATED 28/06/2018 FOR RECTIFICATION OF MISTAKE IN EXT.P6 ORDER SUBMITTED U/S 43 OF THE KGST ACT, BEFORE 1ST RESPONDENT. EXHIBIT P8OF JUDGMENT DATED 11/04/2018 IN WPC NO.12867 OF 2018 PASSED BY THIS HON'BLE COURT ON A SIMILAR SET OF FACT. Css/

Dama Seshadri Naidu, J. ------------------------------------------------------------------ WPC No.22240 of 2018 --------------------------------------------------------------------- Dated this the 4th day of July, 2018 JUDGMENT Petitioner is a registered dealer under the Kerala General Sales Tax Act (for brevity, the KGST Act). Ext.P6 is the assessment order for the year 2014-15. According to the petitioner, Ext.P6 order is vitiated by errors apparent on the face of the record. The petitioner, therefore, preferred Ext.P7 application for rectification of Ext.P6 order.

The petitioner contended that because of this Court's decision in ST(Rev.)Nos.46 and 51 of 2013, his rectification application ought to be allowed. He complains that the authorities, instead, took coercive steps to realise the amounts covered by Ext.P6 order. The petitioner, therefore, seeks appropriate relief in this writ petition.

Heard the learned counsel for the petitioner as also the learned Government Pleader.

In the above factual backdrop, I deem it appropriate to dispose of the writ petition, directing the first respondent to WPC No.22240 of 2018 2 consider and pass orders on Ext.P7 application, after affording the petitioner an opportunity of hearing, in the light of the decision of this Court in ST(Rev.) Nos.46 and 51 of 2013. Ordered accordingly. The petitioner shall produce a certified copy of this judgment and a certified copy of the judgment of this Court in ST(Rev.)Nos.46 and 51 of 2013 before the first respondent. Until orders are passed as directed above, further proceedings for realisation of the amounts covered by Ext.P6 order shall be deferred. Dama Seshadri Naidu, Judge css/