Kerala High Court
Haleel Rahiman vs Commercial Tax Officer on 19 November, 2012
Author: Antony Dominic
Bench: Antony Dominic
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
MONDAY, THE 19TH DAY OF NOVEMBER 2012/28TH KARTHIKA 1934
WP(C).No. 26671 of 2012 (H)
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PETITIONER(S):
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HALEEL RAHIMAN, AGED 46 YEARS
SAFA TRADERS, KANNADI, PALAKKAD DISTRICT.
BY ADVS.SRI.HARISANKAR V. MENON
SMT.MEERA V.MENON
SRI.MAHESH V.MENON
RESPONDENT(S):
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1. COMMERCIAL TAX OFFICER,
1ST CIRCLE, PALAKKAD.
2. INSPECTING ASST. COMMISSIONER
DEPARTMENT OF COMMERCIAL TAXES, PALAKKAD.
BY SR GOVERNMENT PLEADER SMT.SHOBA ANNAMMA EAPEN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
19-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WPC NO.26671/12
APPENDIX
PETITIONER'S EXHIBITS
EXT.P1: COPY OF PRE-ASSESSMENT NOTICE FOR THE YEAR 2010-11 ISSUED BY
THE 1ST RESPONDENT
EXT.P1(A): COPY OF PRE-ASSESSMENT NOTICE FOR THE YEAR 2011-12 ISSUED BY
THE 1ST RESPONDENT
EXT.P2: COPY OF MEDICAL CERTIFICATE FROM THE KARUNA HOSPITAL PALAKKAD.
EXT.P3: COPY OF ASSESSMENT ORDER FOR THE YEAR 1010-11 ISSUED BY THE
1ST RESPONDENT
EXT.P3(A): COPY OF ASSESSMENT ORDER FOR THE YEAR 2011-12 ISSUED BY THE
1ST RESPONDENT
//True Copy//
PA to Judge
Rp
ANTONY DOMINIC, J.
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W.P.(C) NO. 26671 OF 2012
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Dated this the 19th day of November, 2012
J U D G M E N T
Petitioner was issued Ext.P1 notice proposing to complete the assessment under Section 25(1) and to levy penalty as provided under Section 25(3) read with Section 67 of the KVAT Act. Petitioner did not file any reply nor did the petitioner seek an adjournment of the proceedings. The assessing authority completed the assessment and levied penalty as per Exts.P3 and P3(a) orders. It is challenging these orders, the writ petition is filed.
2. The contention raised by the learned counsel for the petitioner is that though Section 25(3) of the KVAT Act enables the assessing authority to direct the dealer, to pay, in addition to the tax assessed under Section 25(1), a penalty as provided in Section 67, such power is exercisable only on completion of the assessment and the assessing authority is satisfied that the escape of turn over was due to willful non disclosure by the assessee. It is contended that while this is possible only after completing the assessment, proposal has been made in Exts.P1 WPC.No.26671/12 :2 : and P1(a) notices itself and for that reason Exts.P3 and P3(a) orders are illegal.
3. Having heard the learned counsel for the petitioner and also the learned Government Pleader appearing for the respondents, I am inclined to think a reading of Section 25(3) of KVAT Act does not warrant such an interpretation. Section 25(3) reads thus;
(3) In making an assessment under sub-section (1), the assessing authority may, if it is satisfied that the escape from assessment is due to wilful non- disclosure of assessable turnover by the dealer direct the dealer, to pay, in addition to the tax assessed under sub-section (1), a penalty as provided in section
67. Provided that no such penalty shall be imposed unless the dealer affected has had a reasonable opportunity of showing cause against such imposition.
Explanation- For the purposes of this section, the burden of proving that the escape from assessment was not due to wilful non-disclosure of assessable turnover by the dealer shall be on the dealer.
4. Exts.P1 and P1(a) are mere show cause notices and on the materials available before the assessing authority, the assessing authority prima facie came to the conclusion that there has been wilful non-disclosure and it is on that basis both assessment and levy of penalty were proposed. Act does not contain any bar in issuing either a composite notice or a WPC.No.26671/12 :3 : composite order and therefore, I am unable to agree with the learned counsel for the petitioner that Exts.P3 and P3(a) orders are vitated on the ground urged before this Court. Therefore, the writ petition does not merit acceptance and is rejected.
5. Writ petition is dismissed.
Be that as it may, petitioner wants to avail of the statutory remedy of appeal against Exts.P3 and P3(a) orders and therefore, I direct that if the petitioner files an appeal against the orders within ten days from today, that will be entertained ignoring the delay involved.
ANTONY DOMINIC, JUDGE Rp