Kerala High Court
M/S. R.J. Atlas Jewellery vs State Tax Officer
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 13TH DAY OF DECEMBER 2017/22ND AGRAHAYANA, 1939
WP(C).No. 40190 of 2017 (W)
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PETITIONER:
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M/S. R.J. ATLAS JEWELLERY,
THANGAL PALACE BUILDING,
A.V.K.NAIR ROAD, 43, NARAGAPPURAM,
THALASSERY, REPRESENTED BY ITS
MANAGING PARTNER JASSIC PRINCE.
BY ADV. SRI.RAJESH NAMBIAR
RESPONDENT(S):
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1. STATE TAX OFFICER.,
II CIRCLE, THALASSERY,
PIN-670028
2. THE COMMISSIONER OF STATE TAX,
TAX TOWERS, KILLIPPALAM,
KARAMANA,
THIRUVANANTHAPURAM-695 002.
BY GOVERNMENT PLEADER SRI. V.K. SHAMSUDHEEN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 13-12-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
sdr/-
WP(C).No. 40190 of 2017 (W)
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APPENDIX
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PETITIONER(S)' EXHIBITS
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EXHIBIT P1 TRUE COPY OF THE MONTHLY RETURNS FILED FOR
THE YEAR 2016-17
EXHIBIT P2 TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT
DATED 31/3/2017 AND ISSUED ON 17/6/2017 PERMITTING TO
PAY TAX U/S 8 OF THE KVAT ACT.
EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 30/8/2017 IN
WPC 28687 OF 2017
EXHIBIT P4 TRUE COPY OF THE ORDER DATED 9/11/2017 OF THE 1ST
RESPONDENT FIXING THE COMPOUNDED TAX U/S 8(F) FOR THE
YEAR 2016-17
EXHIBIT P5 TRUE COPY OF THE ASSESSMENT ORDER FOR THE YEAR 2015-16
RESPONDENT(S)' EXHIBITS NIL
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/TRUE COPY/
PA TO JUDGE
sdr/-
P.B.SURESH KUMAR, J
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W.P.(c) No.40190 of 2017
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Dated this the 13th day of December , 2017
JUDGMENT
Petitioner is a registered dealer under the Kerala Value Added Tax Act (the Act). Ext.P4 order passed by the first respondent on the application preferred by the petitioner under clause (f) of Section 8 of the Act for payment of tax at the compounded rates, is under challenge in the writ petition.
2. On a query from the court, the learned counsel for the petitioner maintained that no appeal is provided under the Act against orders in the nature of Ext.P4. The learned Government Pleader, however, refuted the said stand of the learned counsel for the petitioner and submitted that an appeal lies against Ext.P4 order under Section 55 of the Act.
3. If the petitioner has a right of appeal against the same, it is unnecessary to entertain a writ W.P. (c) No. 40190 of 2017 -2- petition against Ext.P4 order. As such, the question whether an appeal lies against Ext.P4 order needs to be considered.
4. The impugned order is one passed under sub- clause (ii) of clause (f) of Section 8 of the Act. Sub-clauses
(ii), (iv) and (v) of clause (f) of Section 8 as they stood prior to the Finance Act, 2016, read thus:
"8(f). xxx xxx xxx xxx
(ii) save as otherwise provided in this clause, the compounded tax payable under this clause shall be determined for an year and shall be payable in 12 monthly instalments.
xxx xxx xxx xxx
(iv) The assessing authority, for valid and sufficient reasons, such as shifting of place of business, furnishing of false information, suppression or relevant information, failure to furnish such information demanded, may refuse permission to pay tax under this section and cancel the permission, if any, granted:
Provided that no orders under this sub-clause shall be issued without giving the dealer an opportunity of being heard and without prior approval of the District Deputy Commissioner.
(v) Notwithstanding anything contained in section 55 or section 60 of this Act, orders under sub-clause (ii) shall be appealable only to the Appellate Tribunals. "
It is clear from the extracted provisions that in terms of sub- W.P. (c) No. 40190 of 2017 -3- clause (v) of clause (f) of Section 8, notwithstanding anything contained in Section 55 or Section 60 of the Act, orders under sub-clause (ii) are appealable before the Appellate Tribunal. The learned counsel for the petitioner pointed out that the expression 'sub-clause (ii)' contained in sub-clause (v) of clause (f) of Section 8 has been substituted with the expression 'sub-clause (iv)' in terms of the Finance Act, 2016 and that therefore, an appeal would lie before the Appellate Tribunal now under sub-clause (v) only against an order passed under sub-clause (iv) of clause (f) of Section 8. In other words, the submission of the learned counsel for the petitioner is that there is no provision for appeal against an order passed under sub-clause (ii) of clause (f) of Section 8. I do not agree. Sub-clause (iv) of clause (f) of Section 8 contemplates orders refusing permission to pay tax under Section 8 as also cancellations of permissions already granted. Such orders, in the light of the provisions contained in the Finance Act, 2016, are appealable before W.P. (c) No. 40190 of 2017 -4- the Appellate Tribunal under sub-clause (v) of clause (f) of Section 8. Ext.P4 is not an order under sub-clause (iv), but only an order under sub-clause (ii) of clause (f). If Ext.P4 order does not fall under sub-clause (v), in the light of the provision contained in Section 55 of the Act, an appeal would certainly lie against such orders under the said Section.
In the said view of the matter, the writ petition is dismissed without prejudice to the right of the petitioner to prefer an appeal challenging Ext.P4 order.
Sd/-
P.B.SURESH KUMAR JUDGE bng