Kerala High Court
Unknown vs By Adv.Sri.K.S.Hariharan Nair on 4 October, 2017
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
WEDNESDAY, THE 28TH DAY OF MARCH 2018 / 7TH CHAITHRA, 1940
WP(C).No. 10870 of 2018
PETITIONER(S)
EVERONE PROPERTIES (INDIA) PVT. LTD.
PAREEKANNI PO, KOTHAMANGALAM,
ERNAKULAM DIST., PIN 686693,
REPRESENTED BY ITS DIRECTOR SRI. K.M. ABDUL RASHEED.
BY ADV.SRI.K.S.HARIHARAN NAIR
RESPONDENT(S):
1. THE ASSISTANT COMMISSIONER
SPECIAL CIRCLE, COMMERCIAL TAXES,
PERUMBAVOOR 683542
2. THE INTELLIGENCE OFFICER
COMMERCIAL TAXES, SQUAD NO. V,
MATTANCHERRY AT PERUMBAVOOR,
ERNAKULAM- 683542.
3. THE DEPUTY COMMISSIONER (APPEALS)
COMMERCIAL TAXES, ERNAKULAM, 682015
4. THE INSPECTING ASSISTANT COMMISSIONER
DEPARTMENT OF COMMERCIAL TAXES,
MUVATTUPUZHA -686661
R BY SR.GOVERNMENT PLEADER, SRI.V.K.SHAMSUDHEEN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28-03-2018,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 10870 of 2018 (G)
APPENDIX
PETITIONER(S)' EXHIBITS
EXHIBIT P1 COPY OF THE PENALTY ORDER DATED 04.10.2017 ISSUED
BY THE 2ND RESPONDENT
EXHIBIT P2 COPY OF THE APPEAL PETITION DATED 23.03.2018 FILED
BEFORE THE 3RD RESPONDENT AGAINST EXT P1
EXHIBIT P3 COPY OF THE DELAY PETITION DATED 23.03.2018 IN EXT
P2 APPEAL
EXHIBIT P4 COPY OF THE STAY PETITION DATED 23.03.2018 IN EXT
P2 APPEAL
EXHIBIT P5 COPY OF RR NOTICE DATED 20.03.2018 ISSUED BY THE
4TH RESPONDENT
EXHIBIT P6 COPY OF THE NOTICE DATED 28.02.2018 ISSUED BY THE
1ST RESPONDENT FOR THE YEAR 2014-15
EXHIBIT P6 A COPY OF THE NOTICE DATED 28.02.2018 ISSUED BY THE
1ST RESPONDENT FOR THE YEAR 2015-16
EXHIBIT P7 COPY OF THE REPLY DATED 22.03.2018 FILED BY THE
PETITIONER FOR THE YEAR 2014-15
EXHIBIT P7(a) COPY OF THE REPLY DATED 22.03.2018 FILED BY THE
PETITIONER FOR THE YEAR 2015-16
RESPONDENT'S EXHIBITS : NIL
//TRUE COPY//
SD/-
P.A. TO JUDGE
SKS
P.B.SURESH KUMAR, J.
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W.P.(C).No.10870 of 2018
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Dated this the 28th day of March, 2018
JUDGMENT
Petitioner was a dealer registered under the Kerala Value Added Tax Act (the Act). They are running a crusher unit and paying tax at the compounded rates as provided for under Section 8(b) of the Act. The petitioner was imposed a penalty in terms of Ext.P1 order on the ground that the petitioner has not disclosed the output capacity of the vertical shaft impacter installed in the crusher unit in the matter of obtaining permission for payment of tax at the compounded rates. The petitioner challenged Ext.P1 order in Ext.P2 appeal and the same is pending. In the meanwhile, on the basis of Ext.P1 order imposing penalty, proceedings have been initiated for W.P.(C.) No.10870 of 2018 2 revising the assessments of the petitioner for the relevant years. Exts.P6 and P6(a) are the notices issued to the petitioner in this connection. Exts.P7 and P7(a) are the replies given by the petitioner to the said notices. The assessments of the petitioner are yet to be completed as proposed in Ext.P6 series notices. Nevertheless, the petitioner has approached this Court alleging that steps are being taken by the assessing authority to pass orders pursuant to Ext.P6 series notices without conducting a test run to ascertain the output capacity of the vertical shaft impacter installed in the crusher unit. According to the petitioner, the issue as to the output capacity of the vertical shaft impacter cannot be decided without conducting a test run of the machine. It is also the case of the petitioner that if the assessment of the petitioner for the relevant years is completed as proposed in Ext.P6 series notices without conducting a test run of the machine, the petitioner will be put to irreparable injury and loss. The petitioner, therefore, W.P.(C.) No.10870 of 2018 3 seeks appropriate directions in this regard, in the writ petition.
2. Heard the learned counsel for the petitioner as also the learned Government Pleader.
3. The learned Government Pleader vehemently opposed the prayer made by the petitioner pointing out that there is no provision in the statute enabling the dealers to demand the assessing authority to conduct a test run of the machines installed in their premises for the purpose of completing the assessments of the escaped turnover under Section 25 of the Act.
4. True, there is no provision in the statute enabling the dealers to demand the assessing authority to conduct a test run of the machines installed in their premises for the purpose of completing the proceedings under Section 25(1) of the Act. But, it is seen that in terms of Section 8(b) of the Act, the tax payable by a dealer at the compounded rate is determined in terms of the output W.P.(C.) No.10870 of 2018 4 capacity of the machines installed by the dealer. As such, when the assessments of the dealer are proposed to be revised on the ground that the dealer has not disclosed the true output capacity of the machines, there is nothing illegal in the assessing authority conducting a test run of the machine to ascertain the output capacity of the machine.
In the said view of the matter, the writ petition is disposed of directing the assessing authority to conduct a test run before completing the assessments of the petitioner. All other issues are left open.
Sd/-
P.B. SURESH KUMAR,
SKS JUDGE