Kerala High Court
K.V.Johny vs The Assistant Commissioner - Ii (Wc & Lt) on 3 January, 2013
Author: Antony Dominic
Bench: Antony Dominic
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
THURSDAY, THE 3RD DAY OF JANUARY 2013/13TH POUSHA 1934
WP(C).No. 355 of 2013 (T)
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PETITIONER:
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K.V.JOHNY,
VANACHIRAKKAL HOUSE,
VADACODE P.O, KANGARAPPADY,
KOCHI- 682 024.
BY ADV. SRI.DALE P.KURIEN.
RESPONDENTS:
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1. THE ASSISTANT COMMISSIONER - II (WC & LT),
COMMERCIAL TAXES, PERUMANOOR, ERNAKULAM- 682 025.
2. AUTHORITY ON CLARIFICATIONS,
CHAMBER OF JOINT COMMISSIONER (GENERAL),
OFFICE OF THE COMMISSIONER OF COMMERCIAL TAXES,
PUBLIC OFFICE BUILDINGS, OPP. MUSEUM,
THIRUVANANTHAPURAM- 695 033.
3. THE COMMISSIONER OF COMMERCIAL TAXES,
VIKAS BHAVAN, OPP. MUSEUM, PALAYAM,
THIRUVANANTHAPURAM- 695 033.
4. THE STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO TAXES DEPARTMENT,
GOVERNMENT SECRETARIAT, STATUE JUNCTION,
THIRUVANANTHAPURAM- 695 001.
BY SR. GOVT. PLEADER SMT. SHOBA ANNAMMA EAPEN.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 03-01-2013, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Prv.
W.P.(C). NO.355/2013-T:
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P.1: COPY OF THE FORM NO.10(B) DTD. 30/09/2009.
EXT.P.2: COPY OF THE FORM NO.13 DTD. 30/09/2009.
EXT.P.2.A: COPY OF THE FORM NO.13A DTD. 30/09/2009.
EXT.P.2.B: COPY OF THE COMPUTATION STATEMENT DTD. 30/09/2009.
EXT.P.2.C: COPY OF THE P & L ACCOUNT DTD. 30/09/2009.
EXT.P.2.D: COPY OF THE BALANCE SHEET DTD. 30/09/2009.
EXT.P.3: COPY OF THE NOTICE DTD. 14/07/2011.
EXT.P.4: COPY OF THE DECISION CITED STATE OF JARKHAND VS. VOLTAS LTD.,
EAST SINGHBHUM - (2009) 17 KTR 564 (SC).
EXT.P.5: COPY OF THE REPLY DTD. NIL.
EXT.P.6: COPY OF THE ASSESSMENT ORDER DTD. 27/07/2011.
EXT.P.6.A: COPY OF THE DEMAND NOTICE DTD. 27/07/2011.
EXT.P.7: COPY OF THE REQUEST FOR CLARIFICATION SENT DTD. 05/10/2010.
EXT.P.8: COPY OF THE LETTER DTD. 17/08/2012 SENT BY THE CHRTERED
ACCOUNTANT REGARDING THE INTERPRETATION OF RULE 10(2) (A) TO
THE COMMISSIONER OF COMMERCIAL TAXES.
EXT.P.9: COPY OF THE LETTER DTD. 10/02/2012.
EXT.P.10: COPY OF THE SECOND REMINDER DTD. 08/10/2012.
EXT.P.11: COPY OF THE LETTER DTD. 28/12/2012.
EXT.P.12: COPY OF THE RETURN OF P. PADMARAJAN, AMBA NIVAS, THEVARA.
EXT.P12.A: COPY OF THE RETURN & COMPUTATION OF P. PADMARAJAN, AMBA
NIVAS, THEVARA.
EXT.P.13: A STATEMENT OF ACTUAL COMPUTATION OF TAX IN THE CASE OF THE
PETITIONER, ON PURCHASE METHOD BASIS AND RECEIPT METHOD
BASED ON THE PREVAILING RULE 10(2) (A) AND THE DIFFERENCE IN TAX
EFFECT.
RESPONDENTS EXHIBITS: NIL.
//TRUE COPY//
P.A. TO JUDGE
Prv.
ANTONY DOMINIC,J
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W.P.(C)No.355 of 2013
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Dated this the 3rd day of January, 2013
JUDGMENT
Petitioner challenges Ext.P6 order under Section 25 (1) of the KVAT Act and Ext.P6(a) demand notice issued.
2. The petitioner is a works Contractor and the assessment year relevant is 2008-2009. During the year in question, he had opted for compounding. Later, he was issued Ext.P3 notice under Section 25(1), stating that the return cannot be accepted and the defects noted in the notice reads thus:
1. The non-compounded work computation revealed the net tax due is Rs.14,98,537/-
and balance tax due is Rs.3,37,223/-. The balance tax due not seen paid along with revised return under Section 42(2) of KVAT Act.
2. The input tax claim of capital goods not proved with supporting documents. Hence, it will be disallowed.
W.P.(C).No.355 of 2013 : 2 :
3. TDS claim not proved with supporting documents.
4. Input tax claim of Rs.9,16,867/- to be allowed only on production of original purchase bills, and purchase statement for the year 2008-2009. It is therefore the self assessment for 2008-2009 is proposed to revise under Section 25(1) of KVAT Act as under.
3. The petitioner filed Ext.P5 reply relying on the Apex Court judgment in State of Jharkhand & Others v. Voltas Limited, East Singhbhum[(2009) 17 KTR 564(SC)], a copy of which is Ext.P4. Finally, the order was passed as per Ext.P6 and Ext.P6(a) demand notice has been issued. It is challenging these proceedings, the writ petition is filed.
4. Two contentions were raised by the counsel. First contention raised is that in Ext.P3 notice and Ext.P6 order under Section 25(1), exclusion of cost of establishment and overhead charges of the dealer to the extent it is relatable to the supply of labour and service as provided W.P.(C).No.355 of 2013 : 3 : under Rule 10(2)(a) of the KVAT Rules has been denied. Second contention raised is that an application under Section 94 seeking clarification from the third respondent has been filed and that the same is pending. A copy of this application is Ext.P7 and according to the petitioner, this application has been heard and orders are awaited. Therefore, he says that the order should not have been passed at this stage.
5. Having considered the submissions made by the learned counsel for the petitioner, I am unable to agree with him.
6. If as stated by the petitioner, the benefit of Rule 10(2)(a)(v) has been wrongly denied to the petitioner either in Ext.P3 notice or in Ext.P6 order, it is for the petitioner to contest the matter by challenging Ext.P6 before the statutory authority and there is no reason for the petitioner to approach this Court directly bye passing the statutory remedies.
W.P.(C).No.355 of 2013 : 4 :
7. Insofar as pendency of Ext.P7 application under Section 94 is concerned, although the third respondent is obliged to pass orders thereon, having regard to the nature of the controversy raised, which is regarding the alleged denial of the benefit of the Rule, I do not think that the clarifications sought have any relevance, or that the proceedings should have been kept in abeyance until orders are passed on Ext.P7.
Therefore, I dismiss this writ petition but however, this will not be to the prejudice of the petitioner in pursing statutory remedies against Ext.P6 order and will not absolve the third respondent of his obligation to pass orders on Ext.P7. This shall be done as expeditiously as possible.
Writ petition is dismissed.
Sd/-
ANTONY DOMINIC, JUDGE ln