Kerala High Court
Emerson Network Power ( India) P Ltd vs The Assistant Commissioner on 7 July, 2021
Author: A.M.Badar
Bench: A.M.Badar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.M.BADAR
WEDNESDAY, THE 7TH DAY OF JULY 2021 / 16TH ASHADHA, 1943
WP(C) NO. 4206 OF 2021
PETITIONER:
M/S.EMERSON NETWORK POWER (INDIA) P LTD.
(NOW KNOWN AS VERTIV ENERGY P.LTD,
W.E.F 17TH MAY 2017),
BUILDING NO.40/9338, (NEW NO. 59/4517)
4TH FLOOR, CHAKOS TOWERS,
PADMA PULLEPADY ROAD,
COCHIN - 682 035,
REPRESENTED BY ITS DIRECTOR(ZONAL ACCOUNTS),
MR. N.S. V. BABU.
BY ADV SMT. K. LATHA
RESPONDENTS:
1 THE ASSISTANT COMMISSIONER,
OFFICE OF THE ASSISTANT COMMISSIONER,
(SPECIAL CIRCLE III),
COMMERCIAL TAXES,
ERNAKULAM - 682 015.
2 THE INSPECTING ASSISTANT COMMISSIONER,
COMMERCIAL TAXES,
KAKKANAD,
ERNAKULAM - 682 030.
SPL GP. SMT. THUSHARA JAMES
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
07.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C). No.4206 OF 2021
2
JUDGMENT
Heard both sides.
2. The petitioner had challenged the order rejecting rectification application for assessment year 2012-2013 at Ext.P4 so also the assessment order at Ext.P1 for the same assessment year.
3. The learned counsel for the petitioner by drawing my attention to the impugned orders has argued that disallowance of excess IPT for Rs.11,92,370/- was totally incorrect as the petitioner had already filed a reply along with the copies of invoices at the time of the assessment and the assessing officer has admitted those facts and had assured to consider the same in the assessment order. However, those facts were not considered and additional tax liability was imposed on the petitioner by directing him to refund excess IPT of Rs.11,92,370/-. The learned counsel for the petitioner further argued that, in the similar way the petitioner had WP(C). No.4206 OF 2021 3 mentioned the error apparent on the face of the record so far as alleged escaped turn over is concerned. The total sales turn over in Form No.10 was mentioning the figure of Rs.6,55,42,102/-. The figures mentioned in Form No.10B relating to work contracts were specifically stated by the petitioner in the application for rectification and it was pointed out that total turn over of Rs.8,82,43,908/- was accordingly accounted for in the return. However, the same was not properly considered by the assessing officer. The learned counsel for the petitioner urged that similar issues were there in the assessment order for the year 2015-2016 and ultimately those were rectified.
4. The learned Government Pleader argued that scope of writ jurisdiction of this Court is limited and once the rectification application is decided, the petitioner has to resort to the regular remedy of filing an appeal because it will not be possible to examine voluminous data and to give a finding of fact in the writ jurisdiction by this Court.
5. I have considered the submissions so advanced. So far as direction of the assessing officer to refund the WP(C). No.4206 OF 2021 4 excess ITP of Rs.11,92,370/- is concerned, impugned order at Ext.P4 has considered this aspect and it has been observed by the rectifying authority that the petitioner/dealer has failed to produce the invoices and had admitted that the suppliers failed to upload the invoices and therefore the tax was not remitted to the exchequer and hence the impugned tax credit came to be rejected.
6. So far as escaped turn over is concerned, the same point was considered in the rectification order with a finding that the turn over taken for assessment was only in respect of Form No.10 relating to the traders. The turn over of Form No.10B was not taken in the order of assessment and so there is no question of giving credit of payment as per Form No.10B. With these reasons by holding that there is no mistake to be rectified under Section 66 of KVAT Act, 2003, the rectification application so far as these two aspects is concerned, came to be rejected.
7. Consideration of both these aspects which are sought to be urged before this Court would certainly require this Court to record a finding of fact by examining the WP(C). No.4206 OF 2021 5 relevant documents. This Court, if it choses to dwell on these aspect will have to examine whether the petitioner had produced invoices or had failed to produce those invoices in order to ascertain whether rejection of input tax credit was according to law or otherwise. In the same manner scrutiny of Form Nos.10 and 10B will be required to be undertaken by this Court. I am afraid that such an exercise cannot be done by this Court in its limited writ jurisdiction more so when the statutory remedy can be availed by the petitioner.
8. The learned counsel for the petitioner has referred to the judgment at Ext.P7. However in that matter the Court has to embark upon the judicial enquiry to came to the conclusion that the jurisdiction under Section 66 of the KVAT Act was not properly exercised. Such is not the case in hand. Entertaining the issues urged by the petitioner in this case would require examination of facts in the writ jurisdiction. Similarly, I found no substance in contention that there is an error apparent on the face of record so far as KVATIS data is concerned.
9. In the result, as the petitioner has alternate and WP(C). No.4206 OF 2021 6 more efficacious remedy of approaching the appellate authority in the matter, the writ petition is dismissed.
If the petitioner prefers an appeal challenging the assessment order the appellate authority shall consider the time spend on litigating the instant writ petition for condonation of delay in preferring such appeal.
Sd/-
A.M.BADAR JUDGE SPR WP(C). No.4206 OF 2021 7 APPENDIX OF WP(C) 4206/2020 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 THE TRUE COPY OF THE ASSESSMENT ORDER FOR THE YEAR 2012-2013 DATED 20.07.2017 ISSUED BY THE FIRST RESPONDENT TO THE PETITIONER.
EXHIBIT P2 THE TRUE COPY OF THE RECTIFICATION APPLICATION UNDER SECTION 66 OF THE KAVAT ACT FILED BY THE PETITIONER BEFORE THE FIRST RESPONDENT AGAINST THE P1 ASSESSMENT ORDER FOR THE YEAR 2012-2013.
EXHIBIT P3 THE TRUE COPY OF THE FORM NO.10 RETURNS OF THE PETITIONER FOR THE YEAR 2012-2013.
EXHIBIT P3 A THE TRUE COPY OF THE FORM NO.10B QUARTERLY RETURNS OF THE PETITIONER FOR THE PERIOD 1ST OCTOBER 2012 TO 31ST DECEMBER 2012.
EXHIBIT P3 B THE TRUE COPY OF THE FORM NO.10B QUARTERLY RETURNS OF THE PETITIONER FOR THE PERIOD 1ST JANUARY 2013 TO 31ST MARCH 2013.
EXHIBIT P4 THE TRUE COPY OF THE RECTIFICATION ORDER NO.32071380322/12-13 DATED 02/07/2018.
EXHIBIT P5 THE TRUE COPY OF THE ASSESSMENT ORDER FOR THE YEAR 2015-2016 DATED 29.07.2017.
EXHIBIT P6 THE TRUE COPY OF THIS RECTIFICATION REJECTION ORDER FOR THE YEAR 2015-2016 DATED 02.07.2018.
EXHIBIT P7 THE TRUE COPY OF THE JUDGMENT IN WRIT PETITION WPC NO.28908 OF 2018 DATED 15TH DAY OF JULY 2019.
EXHIBIT P8 THE TRUE COPY OF THE RECTIFICATION ORDER FOR THE YEAR 2015-2016 DATED 05.03.2020 ISSUED BY THE FIRST RESPONDENT TO THE PETITIONER.
RESPONDENT'S/S EXHIBITS: NIL