Kerala High Court
M/S.Mooken Devassy (Thevara) & Co vs The Commercial Tax Officer on 20 June, 2016
Author: Antony Dominic
Bench: Antony Dominic, Dama Seshadri Naidu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
&
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
TUESDAY, THE 12TH DAY OF JULY 2016/21ST ASHADHA, 1938
WA.No. 1336 of 2016 () IN WP(C).20832/2016
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AGAINST THE ORDER/JUDGMENT IN WP(C) 20832/2016 of HIGH COURT OF
KERALA DATED 20-06-2016
APPELLANT(S):
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M/S.MOOKEN DEVASSY (THEVARA) & CO.
PERUMANNOR JUNCTION, THEVARA, KOCHI-15.
REP. BY PARTER, DAVID T. MOOKKEN.
BY ADVS.SRI.ANIL D. NAIR
SRI.R.SREEJITH
SMT.NIVEDITA A.KAMATH
KUM.SOUMYA PRAKASH
KUM.MEKHALA M.BENNY
RESPONDENT(S):
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THE COMMERCIAL TAX OFFICER
FOURTH CIRCLE, ERNAKULAM-682 036.
R BY SMT. SHOBA ANNAMMA EAPEN, GOVERNMENT PLEADER
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
12-07-2016, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
ANTONY DOMINIC & DAMA SESHADRI NAIDU, JJ.
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W.A. No. 1336 of 2016
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Dated this the 12th day of July, 2016.
JUDGMENT
Antony Dominic,J.
The petitioner in W.P.(C) No. 20832 of 2016 is the appellant. They filed the writ petition challenging Ext.P3 assessment order passed for the year 2012-2013 levying tax at the rate of 13.5%.
2. According to the appellant, being a presumptive dealer under Section 6(5) of the KVAT Act, the Assessing Officer should have completed the assessment levying tax only at the rate of 0.5%. It is stated that that benefit has been denied to them illegally and therefore the assessment order should have been set aside by this Court. However, referring to the reasons stated in the assessment order, the learned single Judge dismissed the writ petition relegating the petitioner to pursue the statutory remedy of appeal. It is this judgment which is under challenge before us.
3. A reading of Ext.P3 assessment order shows that in addition to the turnover reported, unaccounted purchases with 10% gross profit and an equal amount of the turnover suppressed have W.A. No. 1336/2016 -2- been added. On that basis, the total turnover of the assessee has been quantified at `41,08,511/-. It is on this turnover, tax at the rate of 13.5% has been levied. Section 6(5) of the KVAT Act provides that notwithstanding Section 6(1) and sub-section (2), any registered dealer, who does not fall within any of the categories mentioned in clauses (a) to (f) thereof and whose total turnover for an year is below sixty lakhs of rupees, shall have the option to pay tax at the rate of half per cent of the turnover of sale of taxable goods as presumptive tax, instead of paying tax under Section 6(1) of the Act.
4. There is no dispute even for the Department that the appellant is a registered dealer and that they have opted for payment of tax under Section 6(5) of the Act. However, the benefit of the Section has been denied to the appellant on the basis that certain suppression of turnover has been detected. Though it is true that suppression of turnover has been detected and an equal amount of turnover has been added, still the fact remains that the total turnover now quantified by the Assessing Officer is much less than 60 lakhs of rupees provided in Section 6(5). Section 6(5) of the Act do not contain a provision that an assessee in whose case suppression of turnover is W.A. No. 1336/2016 -3- detected will be denied the benefit of Section 6(5) of the Act. In such a case, even in spite of the turnover suppressed, since the turnover of the assessee is still below 60 lakhs of rupees, according to us, the assessee ought to have been given the benefit of Section 6(5) of the Act. For that reason, we are unable to sustain the judgment under appeal and Ext.P3 order of assessment passed for the assessment year 2012-2013.
5. Accordingly, the judgment under appeal and Ext.P3 are set aside. The matter will stand remitted to the first respondent, who will pass fresh assessment order with notice to the assessee.
This writ appeal is disposed of as above.
ANTONY DOMINIC, JUDGE.
DAMAJUDGE.
SESHADRI NAIDU, Rv W.A. No. 1336/2016 -4-