M/S.P.T.Antony & Sons Alappatt Palathingals Fashion Jewellery vs. Assistant Commissioner, Circle-1, Ekm

Facts

The petitioner, M/s P.T. Antony & Sons, a partnership firm dealing in gold jewellery, filed a writ petition challenging a recovery notice (Ext.P4) for Rs. 2,30,034/- issued for the assessment year 2008-09. The petitioner had previously been assessed for the assessment year 2006-07, with an appeal leading to a modified assessment order (Ext.P2) showing an excess amount of Rs. 1,45,975/-. The petitioner then filed a rectification application (Ext.P3) on November 2, 2011, stating that a special rebate of Rs. 3,46,039/- for March 2007 was not carried forward and reckoned in the Ext.P2 order. The revenue contended that the rectification application was not under Section 66 of the Kerala Value Added Tax Act, 2003, and that there was no apparent error in the order, asserting that the amount for 2008-09 was due and recovery proceedings were initiated.

Held

The Court held that it is an admitted fact that the petitioner's request, whether filed under Section 66 of the Kerala Value Added Tax Act, 2003, or otherwise, was pending before the first respondent. The Court found that upon receipt of such a request, the respondent is duty-bound to pass orders on it one way or the other. Therefore, to meet the interest of justice, the Court directed the first respondent to consider and pass orders on Ext.P3 in accordance with law, after providing notice to the petitioner and affording them an opportunity of being heard, within a period of one month from the date of receipt of a copy of the judgment. The Court also directed that until orders are passed on Ext.P3, any coercive proceedings pursuant to Ext.P4 shall be kept on hold. The Court did not decide on the merits of the rectification application itself, only on the necessity of its consideration.

Key Issues

1. Whether the first respondent is duty-bound to consider and pass orders on the petitioner's rectification application (Ext.P3) dated 02.11.2011, and if so, within what timeframe? (Question of procedure and administrative duty). The petitioner argued that their rectification application (Ext.P3) had not been considered by the first respondent. They contended that if the special rebate was considered and set off granted, no amount would be due for the assessment year 2008-09, as the amount due for 2006-07, if credited, would negate the demand for 2008-09. The revenue, through the learned Government Pleader, argued that Ext.P3 was not filed under Section 66 of the Kerala Value Added Tax Act, 2003, but was merely a request for amendment, which the authority lacked jurisdiction to pass. They also contended that there was no error apparent on the face of the record and that the amount for 2008-09 was due separately.