Kerala High Court
P.Padmarajan vs The Commercial Tax Officer on 5 January, 2012
Author: P.R.Ramachandra Menon
Bench: P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
THURSDAY, THE 5TH DAY OF JULY 2012/14TH ASHADHA 1934
WP(C).No. 13493 of 2012 (J)
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PETITIONER:
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P.PADMARAJAN, CONTRACTOR, AMBA NIVAS,
THEVARA P.O., KOCHI - 682 035.
BY ADV. SRI.DALE P.KURIEN
RESPONDENTS:
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1. THE COMMERCIAL TAX OFFICER
(WORKS CONTRACT), OFFICE OF THE DEPUTY COMMISSIONER
COMMERCIAL TAXES, ERNAKULAM,COCHIN 682 018.
2. THE DEPUTY COMMISSIONER
COMMERCIAL TAXES, ERNAKULAM, COCHIN - 682 018.
3. THE COMMISSIONER OF COMMERCIAL TAXES,
VIKAS BHAVAN, OPP:MUSEUM, PALAYAM
THIRUVANANTHAPURAM - 695 033.
4. THE STATE OF KERALA,
REPRESENTED BY ITS SECRETARY TO TAXES DEPARTMENT
GOVERNMENT SECRETARIAT, STATUE JUNCTION
THIRUVANANTHAPURAM - 695 001.
BY SENIOR GOVERNMENT PLEADER SMT.SHOBA ANNAMMA EAPPEN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
05-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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WP(C).No. 13493 of 2012 (J)
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APPENDIX
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PETITIONER'S EXHIBITS
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EXT.P-1 TRUE COPY OF THE PRE-ASSESSMENT NOTICE DATED 05.01.2012
EXT.P1(a) TRUE COPY OF THE PRE-ASSESSMENT NOTICE DATED 05.01.2012
EXT.P-2 TRUE COPY OF LETTER DATED 06.02.2012.
EXT.P-3 TRUE COPY OF THE ASSESSMENT ORDER DATED 15.5.2012.
EXT.P-4 TRUE COPY OF THE ASSESSMENT ORDER DATED 15.5.2012.
EXT.P-5 TRUE COPY OF THE CERTIFICATE DATED 08.07.2009 ISSUED BY
M/S.COCHIN SHIPYARD LTD.
EXT.P5(a) TRUE COPY OF THE CERTIFICATE DATED 29.09.2007 ISSUED BY
M/S.COCHIN SHIPYARD LTD.
EXT.P-6 TABULAR STATEMENT FOR 2008-09.
EXT.P6(a) TRUE COPY OF THE FORM 20B CERTIFICATE DATED 23.1.2009.
EXT.P6(b) TRUE COPY OF THE FORM 20B CERTIFICATE DATED 1.9.2008.
EXT.P6(c) TRUE COPY OF THE FORM 20B CERTIFICATE DATED 5.7.2008.
EXT.P6(d) TRUE COPY OF THE FORM 20B CERTIFICATE DATED 27.5.2008
EXT.P6(e) TRUE COPY OF THE FORM 20B CERTIFICATE DATED 29.3.2008.
EXT.P-7 TABULAR STATEMENT FOR 2009-10
EXT.P7(a) TRUE COPY OF THE FORM 20B CERTIFICATE DATED 10.8.2010
EXT.P7(b) TRUE COPY OF THE FORM 20B CERTIFICATE DATED 30.3.2009.
EXT.P7(c) TRUE COPY OF THE FORM 20B CERTIFICATE DATED 10.7.2009.
EXT.P-8 TRUE COPY OF THE DECISION REPORTED IN 150 ITR 105 (KER)
IN THE CASE OF CIT VS.M/S.PAREKH BROTHERS.
EXT.P-9 TRUE COPY OF THE ELECTRONIC MAIL DATED 11.03.2011 SENT
BY THE PETITIONER TO THE ASSESSING OFFICER.
EXT.P-10 TRUE COPY OF THE LOCAL DELIVERY BOOK FOR THE MONTH OF MAY
2011 EVIDENCING RECEIPT OF THE RETURN ON 17.5.2011.
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WP(C).No. 13493 of 2012 (J)
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EXT.P-11 TRUE COPY OF THE LETTER SENT TO THE 2ND RESPONDENT,
DEPUTY COMMISSIONER DATED 31.5.2012.
EXT.P11(a) TRUE COPY OF THE RELEVANT PAGES OF THE LOCAL DELIVERY
BOOK CONTAINING IN THE SIGNATURE OF THE DEPUTY
COMMISSIONER.
EXT.P-12 TRUE COPY OF THE POSTAL ACKNOWLEDGEMENT DUE EVIDENCING
THE RECEIPT OF THE LETTER BY THE 1ST RESPONDENT ON
1.06.2012.
EXT.P-13 TRUE COPY OF THE JUDGEMENT DATED 31.1.2012 IN WPC
NO.850/2012 IN THE CASE OF SRI.BASIL N.PAUL.
EXT.P-14 TRUE COPY OF THE JUDGEMENT DATED 6/8/2008 IN WA
NO.1641/2008 IN THE CASE OF M/S.SUPREME ELECTRICAL
ENGINEERING LTD.
ADDL. EXT.P15. COPY OF THE INPATIENT MEDICAL BILL FOR SURGICAL
OPERATION DATED 07.02.2012 OF SRI.T.S.RAMASWAMY CHARTERED
ACCOUNTANT, ISSUED BY MEDICAL TRUST HOSPITAL.
ADDL.EXT.P15(A). COPY OF THE TOTAL INPATIENT BILL SUMMARY COVERING THE
ENTIRE HOSPITALIZATION DATED 07.02.2012 OF
SRI.T.S.RAMASWAMY CHARTERD ACCOUNTANT,
ISSUED BY MEDICAL TRUST HOSPTAL.
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. 13493 OF 2012
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Dated this the 5th day of July, 2012
JUDGMENT
The petitioner is stated as aggrieved of Exts.P3 and P4 assessment orders passed by the first respondent in respect of the assessment years 2008-09 and 2009-10. The main ground of challenge is with regard to the denial of opportunity to substantiate the facts and figures before the assessment proceedings were finalised, mainly for medical reasons.
2. The pleadings and proceedings reveal that the petitioner is a works contractor having transaction solely with M/s. Cochin Shipyard Ltd. and is an assessee on the rolls of the first respondent. According to the petitioner, the total turn over reported was not considered and Ext.P1 and P1(a) pre-assessment notices were issued under Section 25 (1) of the KVAT Act. On receipt of the said notice, Ext.P2 submission was made pointing out that, the Chartered Accountant of the petitioner was admitted as an inpatient in the Medical Trust Hospital and in view WPC.No.13493/2012 2 of the surgery, adjournment by three weeks was sought for. According to the petitioner, there was no further response from the first respondent and he was served with Exts.P3 and P4 assessment orders, fixing a huge liability, without any regard to the facts and figures, particularly, the TDS effected and issuance of Form 20B, which, if reckoned, would not have fastened any liability upon the petitioner and hence under challenge in this writ petition.
3. Copies of Form 20B certificates have been produced along with the writ petition, as Ext.P6 series and Ext.P7 series, in respect of the two different assessment years. According to the petitioner, after the expiry of the time sought for, vide Ext.P2, the petitioner had approached the first respondent in the months of March, April and May 2012 with Form 20B certificates issued by the assessing officer and such other particulars. But, the proceedings were not accepted, as the return had to be filed electronically. Since the time was already over, request was made to enable the petitioner in this regard, which was also not acceded to by the respondent, thus leading to sending an electronic mail on 11/03/2012, as borne by Ext.P9. The petitioner also, by way of WPC.No.13493/2012 3 abundant caution, filed the return along with computation statement and such other documents before the assessing officer, as borne by the endorsement in the local delivery book, Ext.P10. The sequence of events was narrated by sending a detailed representation before the next higher authority, as borne by Ext.P11/P11(a). The grievance is that, the course and conduct of the assessing authority to have closed the door of truth for ever is liable to be intercepted by this Court, in view of the violation of the basic principles of natural justice.
4. In the course of proceedings, the first respondent has filed a statement seeking to rebut the averments and the allegations stating that, several chances were given, but the petitioner was simply avoiding the process. Initially, in response to the notice dated 26/07/2011, it was stated that the assessee was under treatment in the Ayurveda College,Tripunithura for one month, thus seeking for an adjournment to that extent, to have it kept pending till 15/09/2011. Since the assessee did not turn up for three months, Exts.P1/P1(a) notice was issued under Section 25(1) on 05/01/2012. It is also stated that the petitioner was personally directed to produce the details before WPC.No.13493/2012 4 29/02/2012, when the petitioner preferred Ext.P2 request for adjournment. The first respondent contends that, by virtue of the statutory requirement under Rule 60 of the KVAT Rules, the audit report had to be submitted on or before the 31st of October, as in the case of the persons like the petitioner, which, however, was extended by the Commissioner till 11/03/2011. No such return was filed by the petitioner within the stipulated time and in the said circumstance, the proceedings were finalised by passing the assessment orders, which are under challenge in this writ petition. With regard to the case of the petitioner that, there cannot be any suppression in respect of the turn over in the case of a works contractor, it is stated that the suppression in the instant case or suppression in the case of works contractor, is normally not with respect to the total turn over, but with respect to the 'taxable turn over'. Pointing out that the petitioner is a habitual defaulter and that he has not produced any records for the years 2008- 09 onwards, it is stated that he is keeping himself away, protracting things, simultaneously adding that the version of the petitioner that he appeared in the office during March, April and May is not correct. The WPC.No.13493/2012 5 petitioner has filed I.A.No.8938/2012 producing some additional documents as well, showing the hospitalisation and particulars of treatment of the Chartered Accountant availed in the Medical Trust Hospital, in support of the contention raised in the writ petition.
5. Heard both the sides in detail.
6. After considering the rival pleadings, it is seen that, there is considerable lapse on the part of the petitioner, firstly, with reference to the ailments of the petitioner and then that of the Chartered Accountant of the petitioner. But, the fact remains that the petitioner has produced Form 20B certificates in respect of the two assessment years before this Court, as borne by Ext.P6 series and P7 series. The said certificates are issued from the office of the first respondent and the correctness of the said certificates and the extent of liability, if at all any, after giving credit to the same, is a matter which requires to be considered. The opportunity given to the petitioner in this regard has not been properly made use of, but it remains a fact that, by virtue of the nature of the contention of the petitioner, that he is having works contract awarded only by the Cochin Shipyard Ltd and that all the Form 20B certificates WPC.No.13493/2012 6 and the particulars are very much available before the first respondent himself, reference ought to have been made to the available materials on record, while finalising the assessment proceedings .
7. That apart, it has also to be noted that, the submission of Ext.P2 application seeking for adjournment by three weeks stands conceded. The request was to have the case posted to any date after three weeks. In the assessment finalised by the first respondent, it is stated that, despite such request, even after the lapse of three months, the petitioner has not turned up. But then, the question is whether the petitioner was let known, on what day was he required to appear, producing the relevant documents. The only explanation, as discernible from the statement now filed before this Court, is that the petitioner was 'personally' told to produce the documents by 29/02/2012, which however does not find a place in the impugned assessment orders. It is settled law that, the orders passed by the judicial authorities cannot be widened or improved by incorporating something more, in the form of counter affidavit or statement, as the case may be. The only question is, whether the petitioner should be WPC.No.13493/2012 7 relegated to the Appellate Authority by challenging the impugned orders. Even if ,the petitioner is relegated to the Appellate Authority, the issue has to be finally decided with reference to the relevant documents and as a natural consequence, an opportunity may have to be given to the petitioner. This Court finds that the petitioner is not justified in putting the entire blame upon the shoulders of the respondents. At the same time, the first respondent ought to have let known the date of posting pursuant to Ext.P2, to produce the books of accounts and such other materials.
8. Considering the rival contentions, this Court finds it fit and proper to have the proceedings re-opened, giving an opportunity to the petitioner to substantiate the facts and figures, instead of letting that job to be done by the Appellate Authority. Accordingly, Exts.P3 and P4 orders are set aside and the first respondent is directed to consider the matter afresh, after giving an effective opportunity to the petitioner to produce all the documents, which he wants to rely upon in support of the case. For this matter, the petitioner shall appear before the first respondent with all the relevant records on 23/07/2012 or on such other WPC.No.13493/2012 8 date to which the case is adjourned by the first respondent with notice to the petitioner. No adjournment needs to be granted by the first respondent, except under compelling circumstance and it is open for the petitioner either to be present in person or through the concerned Chartered Accountant or by some other authorised representative, if the Chartered Accountant is having some other inconvenience. The proceedings as above shall be finalised, in accordance with law, as expeditiously as possible, at any rate within 'one month' from the date of appearance as above.
Writ petition is disposed of as above.
P.R.RAMACHANDRA MENON JUDGE sv.
WPC.No.13493/2012 9