Kerala High Court
M/S. Indus Towers Limited vs Commercial Tax Inspector on 10 January, 2008
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
TUESDAY, THE 29TH DAY OF MAY 2012/8TH JYAISHTA 1934
WP(C).No. 12066 of 2012 (G)
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PETITIONER(S):
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M/S. INDUS TOWERS LIMITED
VANKAARATH TOWERS, N H BYPASS, COCHIN
KERALA-682 024, REP. BY PREMA KRISHNAN NAIR.M.N
AUTHORISED SIGNATORY.
BY ADV. SRI.A.KUMAR
RESPONDENT:
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COMMERCIAL TAX INSPECTOR
COMMERCIAL TAX CHECK POST, WALAYAR-678 624.
BY SENIOR GOVERNMENT PLEADER SMT.SHOB ANNAMMA EAPEN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
29-05-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
VK
WP(C).No. 12066 of 2012 (G)
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APPENDIX
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PETITIONER(S) EXHIBITS
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EXHIBIT P1- A TRUE COPY OF THE REGISTRATION CERTIFICATE DATED 10.1.2008.
EXHIBIT P2- TRUE COPY OF THE CIRCULAR NO.14/2007 DATED 20.3.2007.
EXHIBIT P3- TRUE COPY OF THE CERTIFICATE OF REGISTRATION ISSUED UNDER
THE KERALA VALUE ADDED TAX ACT DATED 14.12.2011.
EXHIBIT P4- TRUE COPY OF THE TAX INVOICES DATED 24.3.2010.
EXHIBIT P4(A)- TRUE COPY OF THE TAX INVOICES DATED 31.1.2011.
EXHIBIT P4(B)- TRUE COPY OF THE TAX INVOICES DATED 8.2.2011.
EXHIBIT P5- TRUE COPY OF THE DELIVERY CHALLAN DATED 31.1.2011.
EXHIBIT P5(A)- TRUE COPY OF THE DELIVERY CHALLAN DATED 8.2.2011.
EXHIBIT P6- TRUE COPY OF THE GOODS RECEIPT NOTE DATED 3.4.2010 IN
RESPECT OF THE INVOICE DATED 24.3.2010.
EXHIBIT P6(A)- TRUE COPY OF THE GOODS RECEIPT NOTE DATED 7.2.2011 IN
RESPECT OF THE INVOICE DATED 31.1.2011.
EXHIBIT P6(B)- TRUE COPY OF THE GOODS RECEIPT NOTE DATED 10.2.2011 IN
RESPECT OF THE INVOICE DATED 8.2.2011.
EXHIBIT P7- TRUE COPY OF THE DELIVERY NOTE DATED 16.6.2011.
EXHIBIT P7(A)- TRUE COPY OF THE DELIVERY NOTE DATED 17.6.2011.
EXHIBIT P8- TRUE COPY OF THE STOCK TRANSFER ORDER DATED 16.6.2011
ACCOMPANYING THE DELIVERY NOTE DATED 16.6.2011.
EXHIBIT P8(A)- TRUE COPY OF THE STOCK TRANSFER ORDER DATED 17.6.2011
ACCOMPANYING THE DELIVERY NOTE DATED 17.6.2011.
EXHIBIT P8(B)- TRUE COPY OF THE STOCK TRANSFER ORDER DATED 17.6.2011
ACCOMPANYING THE DELIVERY NOTE DATED 17.6.2011.
EXHIBIT P9- TRUE COPY OF THE DELIVERY CHALLAN DATED 4.5.2012.
WP(C).No. 12066 of 2012 (G)
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EXHIBIT P10- TRUE COPY OF THE TAX INVOICE DATED 4.5.2012 IN RESPECT OF
THE SPDS.
EXHIBIT P11- TRUE COPY OF THE E-SUGAM DECLARATION DATED 5.5.2012.
EXHIBIT P12- TRUE COPY OF THE NOTICE DATED 6.5.2012.
EXHIBIT P13- TRUE COPY OF THE PETITIONER'S REPLY DATED 11.5.2012.
EXHIBIT P14- TRUE COPY OF THE REPLY GIVEN BY THE RESPONDENT DATED
11.5.2012.
EXHIBIT P15- TRUE COPY OF THE PETITIONER'S REPLY DATED 21.5.2012.
EXHIBIT P16- TRUE COPY OF THE RESPONDENT'S REPLY DATED 22.5.2012.
EXHIBIT P17- A TRUE COPY OF THE JUDGMENT OF THE HON'BLE DIVISION BENCH
IN STRV NO.88 OF 2010 DATED 27.9.2010.
RESPONDENTS' EXHIBITS : NIL
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/ TRUE COPY /
P.A. TO JUDGE
VK
P.R. RAMACHANDRA MENON, J.
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W.P.(C)No. 12066 OF 2012
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Dated this the 29th May, 2012
J U D G M E N T
The petitioner is stated as aggrieved of Ext.P12 notice issued under Section 47(2) of the KVAT Act., 2003 doubting evasion of tax and demanding security to the extent as specified therein. The insinuating circumstance noted in Ext. P12 notice reads as follows:
'''the commodity under transport is
Telecommunications and Transmission
equipments declaring job work (in to Kerala) from Pace Power Systems Pvt. Ltd., Kumbalgodu, Bangalore in two valuations that a delivery challan Dc.No.002/4/05.2012 for Rs.5,071,779.37 with an endorsement "Not for sale. No commercial value, returned back after reconditioning and fixing of SPD". But no documentary evidence are produced to prove whether the above said commodity is passed outward for job work through the border check post previously. Hence it is suspected that no job work is effected in this case and it is also suspected that the above said commodity is purchased from Pace Power Systems Pvt. Ltd. Bangalore.
W.P.(C)No. 12066 OF 2012
2
Further the tax invoice
No.122000017/4.5.2012 for Rs.575,557.86
and tax invoice No.122000018/4.5.2012 for Rs.170,535.51 in which only the invoice No is declared in the check post, its value is not seen declared."
2. The case of the petitioner is that the goods were actually brought in connection with the works contract being undertaken by the petitioner for providing necessary infrastructure to the various service providers in the Mobile Sector. The case of the petitioner is that even though the materials involved were brought to the State as early as in 2010 or in 2011, they were not installed because of some serious defects noted in the system. It was in the said circumstance that the equipments were sent back to be got re-serviced by installing Surge Protection Device (SPD) and after effecting the necessary reconditioning, the equipments were being brought back to the State. It is stated that the above items were actually forming part of capital goods and not intended for sale and therefore, there cannot be any tax liability. However, in the course of W.P.(C)No. 12066 OF 2012 3 transit back to the State, the goods were intercepted by the respondent issuing Ext.P12 notice as aforesaid. The learned Counsel for the petitioner submits that the documents produced before the concerned authority and before this Court reveal that, there were check post entries, on the basis of which, the goods were transported to Kerala; and this being the position, the same cannot be treated as an instance to evade tax under any circumstance.
3. The learned Sr. Government Pleader on instruction submits that the documents in support of the transport do not reconcile with the case projected by the petitioner. The learned Government Pleader also makes a reference to the apparent discrepancy with regard to the documents produced by the petitioner, particularly Exts.P7 and P7(a) delivery notes . When Ext. P7 bearing No.0534956 is dated 16.06.2011 , the previous delivery note having Sl.No.0534955 is of subsequent date, i.e. 17.06.201. This by itself rather contradicts the case projected by the petitioner. This being the position, the respondent cannot be blamed for having doubted the genuineness of the transaction. W.P.(C)No. 12066 OF 2012 4
4. After going through the materials on record, this Court finds that the matter requires to be adjudicated by the competent authority in tune with the relevant provisions of law. But , for this reason, the goods need not be detained at the check post causing unnecessary hardship to all concerned. In the said circumstance, this Court finds it fit and proper to have the goods released to the petitioner forthwith, on condition that the petitioner furnishes Bank Guarantee for 50% of the security deposit demanded in Ext.P12 notice and furnishes 'simple bond' in respect of the balance amount. This will not bar the way of the competent authorities in proceeding with further steps for adjudication passing final orders under Section 47(6) of the KVAT Act, 2003.
The writ petition is disposed of.
P.R. RAMACHANDRA MENON, JUDGE.
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