Kerala High Court
M/S.Fiber World vs The Commercial Tax Officer on 2 March, 2016
Author: K. Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
WEDNESDAY, THE 8TH DAY OF MARCH 2017/17TH PHALGUNA, 1938
WP(C).No. 5324 of 2017 (M)
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PETITIONER(S):
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M/S.FIBER WORLD,
S.N.V ROAD, KANNADIKAVALA,
MUHAMMA, CHERTHALA,
ALAPPUZHA- 688525,
REPRESENTED BY ITS MANAGING PARTNER,
ROBY FRANCIS.
BY ADVS.SRI.V.DEVANANDA NARASIMHAM
SRI.P.H.RIYAS
RESPONDENT(S):
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1. THE COMMERCIAL TAX OFFICER,
SECOND CIRCLE, COMMERCIAL TAXES,
ALAPPUZHA- 688 001.
2. THE DEPUTY COMMISSIONER,
COMMERCIAL TAXES,
NEAR VAZHICHERY BRIDGE,
ALAPPUZHA- 688001.
3. THE STATE OF KERALA,
THIRUVANANTHAPURAM- 695001,
REPRESENTED BY ITS SECRETARY TO TAXES.
R1-3 BY GOVERNMENT PLEADER SRI. V.K. SHAMSUDDIN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
08-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
EL
WP(C).No. 5324 of 2017 (M)
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APPENDIX
PETITIONER(S)' EXHIBITS
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P1 TRUE COPY OF THE APPLICATION DATED 2.3.2016 TO REVISE
RETURN FOR THE MONTHS OF JUNE & JULY 2014 E- FILED
BEFORE THE 1ST RESPONDENT
P2 TRUE COPY OF THE APPLICATION DATED 31.3.2016 TO REVISE
THE RETURN FOR THE MONTH OF JUNE AND JULY 2014 E-FILED
BEFORE THE 1ST RESPONDENT.
P3 TRUE COPY OF THE ANNUAL RETURN DATED 9.5.2016 E-FILED
FOR THE YEAR 14-15 IN KVATIS BY THE PETITIONER
P4 TRUE COPY OF THE DETAIL APPLICATION DATED 12.5.16 TO
REVISE THE RETURNS FOR THE YEARS 14-15 AND 15-16 E-
FILED BEFORE 1ST RESPONDENT
P5 THE COPY OF THE AUDIT REPORT IN FORM 13 AND 13A DATED
30.7.2016 E-FILED BY THE PETITIONER
P6 TRUE COPY OF THE REFUND APPLICATION DATED 23.8.2016 IN
FORM 21C FILED BY THE PETITIONER BEFORE THE 1ST
RESPONDENT
P7 TRUE COPY OF THE NOTICE DATED 6.9.2016 ISSUED BY THE
1ST RESPONDENT TO THE PETITIONER INTIMATING THE
REJECTION OF EXBT.P6 APPLICATION.
P8 TRUE COPY THE APPLICATION FOR CONDONATION OF DELAY IN
FILING EXBT.P6 FORM 21C REFUND APPLICATION DATED
23.9.16 FOR THE YEAR 2014-15 SUBMITTED BY THE
PETITIONER BEFORE THE 2ND RESPONDENT
P9 TRUE COPY OF THE MEDICAL CERTIFICATE DATED 23.9.2016
ISSUED TO THE PETITIONER BY THE DOCTOR ATTENDED HIM.
P10 TRUE COPY OF THE ORDER DATED 18.10.2016 PASSED BY THE
2ND RESPONDENT REJECTING EXBT-P8 APPLICATION FOR
CONDONATION OF DELAY IN FILING FROM 21 C FOR THE YEAR
2014-15 U/S 20A OF THE KVAT ACT.
RESPONDENT(S)' EXHIBITS
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NIL
TRUE COPY
P.S. TO JUDGE
EL
K. VINOD CHANDRAN, J.
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W.P.(C)No.5324 of 2017 - M
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Dated this the 08th day of March, 2017
J U D G M E N T
The petitioner is aggrieved with Ext.P10 order passed by the Deputy Commissioner under Section 20A of the Kerala Value Added Tax Act, 2003 (for brevity 'the KVAT Act').
2. The rejection was of a refund application filed under Form 21C, for reason of the rejection of the condonation of delay as sought for by the petitioner in the application. The refund of the petitioner, an exporter was sought for, for the assessment year 2014-15. The provision for refund, applicable to the petitioner, an exporter, is Rule 47 of the Kerala Value Added Tax Rules, 2005 (for brevity ' the KVAT Rules'). Rule 47(1) of KVAT Rules prescribes for every dealer, who claims a refund under Section 13 of the KVAT Act to submit an application in Form 21C to the Assessing Authority 2 W.P.(C)No.5324/2017 concerned, not later than one year from the date on which the goods have been exported. The export of the goods for which refund was sought for, was in the assessment year 2014-15.
3. The Deputy Commissioner rejected the application on the ground that there is a delay of 416 days. This is on the premise that Rule 47A of the KVAT Rules provides for a refund application with three months. In fact, Rule 47 of the KVAT Rules, which is applicable to the petitioner provides for a refund application within one year from the date on which the goods have been exported. The goods were exported in the entire financial year. It would be appropriate that on the facts of this case, the limitation be determined from 31.03.2015, which is the end of the financial/assessment year. Hence, the petitioner had to file an application on or before 31.03.2016. The petitioner had filed the application on 23.08.2016.
3 W.P.(C)No.5324/2017
4. Obviously, the delay is far lesser than that found by the Deputy Commissioner in Ext.P10. It is also seen that the petitioner has an explanation for the delay, insofar as the Managing Partner of the petitioner having been rendered sick and hence unable to file the refund application. The Deputy Commissioner has found that the firm had filed the returns timely and properly but not the refund application.
5. In any event, considering the fact that the refund application has been made with delay of around five months, it is appropriate that the refund be considered after condonation of delay. Though normally a remand would have sufficed, considering the facts and circumstances of the case and also the fact that only a delay condonation is being permitted, it is appropriate that the order at Ext.P10 be set aside on conditions and the delay deemed to have been condoned.
4 W.P.(C)No.5324/2017
6. Since, admittedly, there is a delay occasioned, the petitioner shall pay an amount of Rs.5,000/- (Rupees five thousand only) as cost for the assessment year; to the Head of Account No. 0040-111-09 (cost to department). The payment shall be made within a period of two weeks. On such payment, Ext.P10 would stand set aside. The application for refund would be considered on merits after issuing notice to the petitioner and affording a personal hearing to the petitioner, within two months from the date of receipt of a certified copy of this judgment. Interest if any on the refund shall run only after the expiry of the two month period stipulated herein.
The writ petition would stand allowed.
Sd/-
K. VINOD CHANDRAN, JUDGE SB/08/03/2017 // true copy // P.A to Judge