BharatTaxGST

K. Reghunathan vs. Assistant Commissioner Of State Taxes

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WP(C)/17900/2018HC KeralaGSTCNR KLHC01049487201827 June 2018Bench: HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU7 pages

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Heard together (2 matters)

WP(C)NO.3094 OF 2018
W.P (C) No.17900 of 2018

Read from the judgment's own cause title. This page is filed under one of them.

Cause title — parties, addresses and appearances
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU WEDNESDAY, THE 27TH DAY OF JUNE 2018 / 6TH ASHADHA, 1940 WP(C).No. 17900 of 2018 PETITIONER(S) : K. REGHUNATHAN PROPRIETOR, K.R.INN, DOOR NO.7/274E, PERUMPILAVU, KARIKKAD P.O., THRISSUR DISTRICT - 680 519. BY ADV.SRI.TOMSON T.EMMANUEL RESPONDENT(S) : 1. ASSISTANT COMMISSIONER OF STATE TAXES STATE GOODS AND SERVICES TAX DEPARTMENT, SPECIAL CIRCLE, PUTHOLE, THRISSUR - 680 004. 2. ASSISTANT COMMISSIONER COMMERCIAL TAXES COMPLEX, PUTHOLE, THRISSUR - 680 004. 3. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 033. BY SRI.V.K.SHAMSUDHEEN, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ACM WP(C).No. 17900 of 2018 (J) APPENDIX PETITIONER(S)' EXHIBITS : EXHIBIT P1. COPY OF RETURN FOR THE MONTH OF SEPTEMBER 2013, SUBMITTED BEFORE THE 1ST RESPONDENT EXHIBIT P1 (A). COPY OF RETURN FOR THE MONTH OF OCTOBER 2013, SUBMITTED BEFORE THE 1ST RESPONDENT EXHIBIT P1 (B). COPY OF RETURN FOR THE MONTH OF NOVEMBER 2013, SUBMITTED BEFORE THE 1ST RESPONDENT EXHIBIT P2. COPY OF COMPOUNDING PROCEEDINGS DT. 22.11.2013 ISSUED BY INTELLIGENCE OFFICER, SQUAD-IV, THRISSUR EXHIBIT P3. COPY OF REVISED RETURN FOR THE MONTH OF SEPTEMBER 2013, SUBMITTED BEFORE THE 1ST RESPONDENT, WITH BALANCE PAYMENT EXHIBIT P3(A). COPY OF REVISED RETURN FOR THE MONTH OF OCTOBER 2013, SUBMITTED BEFORE THE 1ST RESPONDENT, WITH BALANCE PAYMENT EXHIBIT P3(B). COPY OF REVISED RETURN FOR THE MONTH OF NOVEMBER 2013, SUBMITTED BEFORE THE 1ST RESPONDENT, WITH BALANCE PAYMENT EXHIBIT P4. COPY OF ANNUAL RETURN FOR THE YEAR 2013-14 SUBMITTED BY PETITIONER, WHICH INCLUDES TURNOVER SUPPRESSION DETECTED IN EXT. P2 PROCEEDINGS EXHIBIT P5. COPY OF AUDITED FINANCIAL STATEMENT FOR 2013-14, SUBMITTED BEFORE THE 1ST RESPONDENT EXHIBIT P6. COPY OF NOTICE U/S.17(3) OF THE KGST ACT FOR 2013-14 ISSUED TO PETITIONER BY 1ST RESPONDENT EXHIBIT P7. COPY OF REPLY DATED 7.11.2017 SUBMITTED BEFORE 1ST RESPONDENT AGAINST EXT. P6 NOTICE EXHIBIT P8. COPY OF ORDER DATED 14.11.17 FOR 2013-14, PASSED BY 1ST RESPONDENT WITHOUT CONSIDERING EXT. P7 REPLY EXHIBIT P9. COPY OF APPLICATION U/S.43 OF KGST ACT FOR RECTIFICATION OF MISTAKE IN EXT.P8 SUBMITTED BEFORE 1ST RESPONDENT PURSUANT TO EXT P8 ORDER EXHIBIT P10. COPY OF JUDGMENT DATED 30.01.2018 IN WP(C)NO.3094 OF 2018 PASSED BY THIS HON'BLE COURT EXHIBIT P11. COPY OF LETTER DATED 12.4.2018 SUBMITTED BY PETITIONER AGAINST REVISED NOTICE BEFORE 1ST RESPONDENT AGAINST REVISED NOTICE EXHIBIT P11(A) COPY OF JUDGMENT DATED 01.01.2014 IN ST REV. NO.46 AND 51 OF 2013 PASSED BY DIVISION BENCH OF THIS HON'BEL COURT IN CLARIFYING CALCULATION OF ACM WP(C).No. 17900 of 2018 (J) GROSS PROFIT RATIO TO BE MADE ON THE BASIS OF SALES AND NOT ON PURCHASE EXHIBIT P12. COPY OF ORDER DATED 2.5.2018 ISSUED TO PETITIONER AGAINST EXT.P9 APPLICATION WITHOUT CONSIDERING EXT.P11(A) JUDGMENT IN ST REVISION EXHIBIT P13. COPY OF REVENUE RECOVERY NOTICE ISSUED BY 2ND RESPONDENT, PURSUANT TO EXT P12 DEMAND RESPONDENT(S)' EXHIBITS : NIL //TRUE COPY// PA TO JUDGE ACM DAMA SESHADRI NAIDU, J. =========================== W.P (C) No.17900 of 2018 =========================== Dated this the 27th day of June, 2018

JUDGMENT The petitioner, running a bar attached to a hotel, is a registered dealer under the Kerala General Sales Tax Act.

2.

Despite the petitioner's filing the return for the assessment year 2013-2014, the assessing authorities suspected suppression and issued Ext.P2 proceedings. Later, the Assistant Commissioner of State Tax issued Ext.P8 order for 2013-14, by making additions. Questioning what are said to be patent errors in Ext.P8 order, the petitioner submitted Ext.P9 application for rectification, under section 43 of the Act.

3.

First, the petitioner approached this Court, seeking a modified order from the respondent authority, under Section 43 of the Act. Then, after getting Ext.P10 judgment, the petitioner produced it before the first respondent, who issued a revised notice to the petitioner. Again, the petitioner submitted Ext.P11 reply, along with Ext.P11(a) judgment rendered in some other case. The judgment, the petitioner claims, was rendered on identical facts.

4.

Yet again, the first respondent passed Ext.P12 reiterating the earlier findings. Aggrieved, the petitioner has filed this writ petition. He wants the Court to quash the first respondent’s Ext.P12 order, issued for 2013-14. 5. The petitioner’s counsel has submitted that the first respondent has ignored the binding judgment from this Court and rendered the Ext.P12 in a mechanical manner. He has also brought to my notice the judgment, dt.11.04.2018, in WP(C) No. 1286 of 2018, to contend that this Court, earlier, under similar circumstances, directed the authority to reconsider the issue.

6.

The learned Government Pleader submitted that the petitioner has an efficacious alternative remedy under Section 34 of the Act. According to him, it is open for the petitioner to raise all objections before the appellate authority, as he did in this writ petition.

7.

Indeed, the petitioner contended that the first respondent, while issuing Ext.P12 order, ignored a binding decision of this Court. Granted, this Court, on an earlier occasion, rendered the judgment, dated 30.01.2018, in WP (C) No.3094 of 2018. I reckon that in Ext.P12, the first respondent, to be fair, did consider that judgment, but held that it did not apply. So we cannot say that the authority ignored a precedent. The decision may still be wrong, but this is not the forum for the petitioner to agitate an issue which an appellate forum could redress. And that forum is available under Section 34 of the Act.

8.

As a result, I conclude that the petitioner has an efficacious alternative remedy. So this writ petition must fail. It does. It is dismissed.

9.

The petitioner, in fact, bona fide pursued his remedy here, and this Court now holds that the petitioner’s remedy lies elsewhere— before the appellate authority. Fairness demands, under these circumstances, that the petitioner be given time to approach the appellate forum. In the meanwhile, the respondent should not take steps that may render the petitioner’s statutory remedy illusory. So I hold that respondent should defer coercive steps for six weeks from today, and the petitioner, in the meanwhile, approach the appellate forum. DAMA SESHADRI NAIDU, JUDGE ACM

Reproduced from the public record of the Kerala High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.