Kerala High Court
M/S Ags Transact Technologies Pvt.Ltd vs The State Of Kerala on 15 March, 2010
Author: Antony Dominic
Bench: Antony Dominic
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
THURSDAY, THE 4TH DAY OF OCTOBER 2012/12TH ASWINA 1934
WP(C).No. 21892 of 2012 (J)
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PETITIONER(S):
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M/S AGS TRANSACT TECHNOLOGIES PVT.LTD,
NO.CC 34/973 A,PALLIKAVIL BUILDINGS,
OPPOSITE TOEDAPPALLY CORPORATION OFFICE,
ANJUMANA TEMPLE ROAD,EDAPPALLY POST,ERNAKULAM-682024,
REPRESENTED BY IT'S SENIOR MANAGER MR.MOHANDAS.
BY ADV. SMT.K.LATHA
RESPONDENT(S):
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1. THE STATE OF KERALA,
REPRESENTED BY CHIEF SECRETARY,SECRETARIAT,
THIRUVANANTHAPURAM.
2. COMMERCIAL TAX OFFICER,
KVAT SECOND CIRCLE,COMMERCIAL TAXES,THRIPUNITHURA,
ERNAKULAM-682019.
3. INTELLIGENCE OFFICER,
SQUAD NO.I,DEPT.OF COMMERCIAL TAXES,ERNAKULAM,
PIN-682024.
BY GOVERNMENT PLEADER, SMT. SHOBHA ANNAMMA EAPEN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 04-10-2012, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C).No. 21892 of 2012 (J)
-2-
APPENDIX
PETITIONER(S) EXHIBITS
EXT-P1 THE TRUE COPY OF THE ATM NETWORK DEPLOYMENT AND
MANAGEMENT AGREEMENT DATED 15TH DAY OF MARCH 2010
BETWEEN THE PETITIONER'S MUMBAI CORPORATE OFFICE
WITH AXIS BANK LIMITED
EXT-P2 THE TRUE COPY SAMPLE LEASE AGREEMENT DATED 21ST
JUNE 2011 BETWEEN M/S WONDERLA HOLIDAYS P
LTD,ERNAKULAM AND THE PETITIONER COMPANY FOR
TAKING THE PREMISES ON LEASE FOR THE INSTALLATION
OF THE ATM MACHINES.
EXT-P3 TRUE COPY OF THE SAMPLE INVOICE
NO.LOP/1112/S101003-9 DATED 30-7-2011 RAISED BY
THE PETITIONER'S MUMBAI OFFICE TO AXIZ BANK
LTD,MUMBAI.
EXT-P4A THE TRUE COPY OF NOTICE IECI-7-31/11-12 (2010-11)
DATED 07/12/201 ISSUED BY THE THIRD RESPONDENT TO
THE PETITIONER
EXT-P4B THE TRUE COPY OF NOTICE NO.IECI-1-7/11-12 (2010-
11)DATED 04/02/2012 ISSUED BY THE THIRD
RESPONDENT TO THE PETITIONER
EXT-P5 THE TRUE COPY OF THE ANNAUL RETURN FILED BY THE
PETITIONER FOR THE YEAR 2010-2011 DATED 27-7-2011
EXT-P6A THE TRUE COPY OF THE APPLICATION FOR REVISING
THE ANNUAL RETURN FOR THE YEAR 2010-2011
EXT.P6B THE TRUE COPY OF REVISED ANNAUL RETURN FOR THE
YEAR 2010-2011
EXT-P7 THE TRUE COPY OF FORM NO.13 & 13A FILED FOR THE
YEAR 2010-2011
EXT-P8A THE TRUE COPY OF THE REPLY DATED 25-1-2012 FILED
PETITIONER AGAINST THE P4A NOTICE.
EXT.P8B THE TRUE COPY OF THE REPLY DATED 24TH FEBRUARY
2012 FILED PETITIONER AGAINST THE P4B NOTICE.
EXT.P9 THE TRUE COPY OF THE PENALTY NOTICE UNDER SECTION
67(1) OF THE KVAT ACT 2003 DATED 30.5-2012,ISSUED
BY THE THIRD RESPONDENT TO THE PETITIONE.
EXT.P10 THE TRUE COPY OF THE REPLY DATED 2.6.2012 AND
REPLY DATED 19TH JULY 2012 FILED BY THE
PETITIONER AGAINST THE P9 PENALTY NOTICE.
EXT-P11 TRUE COPY OF THE STATEMENT SHOWING THE DETAILS OF
INTER STATE STOCK TRANSFER VALUE OF AUTOMATED
TELLER MACHINES AND ITS PARTS SENT TO VARIOUS
LOCATIONS FOR INSTALLATION.
EXT-P12 THE TRUE COPY OF THIS PENALTY ORDER NO.IEC
1/7/2011 -2012 (2010-11)DATED 14.8.2011 ISSUED BY
THE THIRD RESPONDENT TO THE PETITIONER.
EXT.P13 THE TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.15366
OF 2012 DATED 31ST DAY OF JULY 2012.
EXT.P14 THE TRUE COPY OF THE CERTIFICATE DATED 12-7-2011
ISSUED BY ASST.COMMISSIONER (WC & LT),COMMERCIAL
TAXES,ERNAKULAM.
EXT.P15 THE TRUE COPY OF THE CLARIFICATION NO.ORDER
NO.C9/11634/10 CT DATED 5-4-2011 ISSUED BY THE
COMMISSIONER TAXES TO THE PETITIONER.
RESPONDENTS' EXHIBITS :NIL
// True copy //
PA to Judge
das
ANTONY DOMINIC,J
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W.P.(C)No.21892 of 2012
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Dated this the 04th day of October, 2012
JUDGMENT
Petitioner is a dealer registered under the KVAT Act. They were issued Ext.P9 notice calling upon them to show cause why penalty under Section 67(1) of the Act shall not be levied on them. On the basis that they had filed untrue and incorrect returns during the year 2010-2011 and they suppressed sales turnover of Automatic Teller machines. To the show cause notice, they filed Ext.P10 reply and produced to the documents in support of their contentions. In the reply, they sought an opportunity of hearing. Their representative was heard and Ext.P12 order was passed, levying penalty of Rs.58,54,684/- on them. It is this order, which is under challenge in this writ petition.
2. Admittedly, the KVAT Act provides for an appellate remedy against an order in the nature of Ext.P12. In spite of it, the petitioner can approach this Court challenging such an order, only in extraordinary situations and one such exemption is the W.P.(C).No.21892/2012 : 2 : violation of the principles of natural justice and the attempt of the petitioner is to make out a case that the order has been passed in violation of the principles of natural justice.
3. In support, the counsel contended that in Ext.P9 show cause notice, the allegation was of untrue and incorrect returns and suppression of sale turnover. It is stated that as against that allegation, in Ext.P12 order has been rendered on the finding that the petitioner bought goods using 'F' form and disposed of the goods using the same form. In other words petitioner seeks to make out a case that order has been rendered on the basis of a factual issue in respect of which there was no show cause or a personal hearing. However, I am unable to agree. In my view, the finding in Ext.P12, which is relied on by the petitioner is only a factual finding in support of the allegation in Ext.P9 regarding the filing of untrue and incorrect returns and suppression of sales turnover.
3. Therefore, I am not persuaded to think that on the ground argue Ext.P12 is vitiated for violation of the principles of natural justice. Consequently, I do not think that the W.P.(C).No.21892/2012 : 3 : petitioner has made out a case for bye-passing the statutory remedy of appeal.
4. Therefore, the writ petition is dismissed leaving it open to the petitioner to pursue the statutory remedies.
However, having regard to the pendency of this writ petition, I direct that if appeal against Ext.P12 is filed, within three weeks from today, that will be entertained by the appellate authority ignoring the delay, that was occurred.
Writ Petition is dismissed.
ANTONY DOMINIC, JUDGE ln