Kerala High Court
M/S. Sona Enterprises vs The Commercial Tax Officer on 24 April, 2012
Author: A.M.Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
FRIDAY, THE 27TH DAY OF MAY 2016/6TH JYAISHTA, 1938
WP(C).No. 10841 of 2016 (E)
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PETITIONER :
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M/S. SONA ENTERPRISES
SONA PARK, CHAVAKKAD, REPRESENTED BY P. SATHAR,
MANAGING PARTNER
BY ADVS.SRI.JOSE JOSEPH
SRI.AJAY V. ANAND
SRI.AJAY BEN JOSE
RESPONDENT(S):
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1. THE COMMERCIAL TAX OFFICER
CHAVAKKAD, THRISSUR DISTRICT.
2. THE DEPUTY TAHSILDAR (.R.R)
TALUK OFFICE, CHAVAKKAD.
R1 & R2 BY GOVT. PLEADER SMT. K.T. LILLY
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
27-05-2016, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Mn
...2/-
WP(C).No. 10841 of 2016 (E)
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APPENDIX
PETITIONER(S)' EXHIBITS :
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EXT P.1 TRUE COPY OF THE ASSESSMENT ORDER UNDER THE KVAT ACT FOR
THE YEAR 2009-10 DATED 24.4.2012.
EXT P.2 TRUE COPY OF THE APPELLATE ORDER IN KVATA 277/2012 DATED
22.8.2012.
EXT.P.3 TRUE COPY OF NOTICE U/S 25(1) OF THE KVAT ACT DATED 4.12.2015.
EXT.P.4 TRUE COPY OF PETITIONER'S OBJECTION TO EXT.P3 NOTICE DATED
11.01.2016.
EXT.P.5 TRUE COPY OF ASSESSMENT ORDER NO.32081120065/2009-10 DATED
3.2.2016.
EXT.P.6 TRUE COPY OF NOTICE U/S. 7 OF THE R.R ACT DATED 14.3.2016.
EXT.P.7 TRUE COPY OF NOTICE U/S 34 OF THE R.R ACT DATED 14.3.2016
RESPONDENT(S)' EXHIBITS : NIL
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//TRUE COPY//
P.A. TO JUDGE
Mn
A.M.SHAFFIQUE, J.
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W.P.(C) No.10841 of 2016
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Dated this the 27th day of May, 2016
J U D G M E N T
The petitioner challenges Ext.P5 order passed by the Commercial Tax Officer by which the petitioners' tax had been assessed at 46,75,884/- under Section 25(1) of the KVAT Act, 2003 for the year 2009-10.
2. Though there is an alternate remedy by way of appeal, the petitioner has approached this Court inter alia contending that the direction issued by the appellate authority as per order dated 22.08.2012 has not been complied by the Commercial Tax Officer. It is stated that earlier an assessment has been made, which came to be challenged by filing KVATA No.277 of 2012. The main dispute raised by the petitioner is regarding the closing stock, which according to the petitioner was 37751.570 grams of gold held by the Managing Partner as the office was under renovation.
3. The appellate authority observed that the assessing authority ought to have conducted an enquiry to ascertain the facts of the stock submitted by the appellant, especially when the status and place of stock and alleged sales are disputed, before rejecting the reply and there was no explanation for the same. Accordingly, the matter was remitted back and direction was issued to consider the matter in accordance with law.
W.P.(C) No.10841 of 2016 2
4. The assessing authority again after issuing notice to the petitioner and considering the reply, passed the impugned order. A perusal of the impugned order would indicate that the assessing authority had given sufficient opportunity to the petitioner to file their objections.
5. The learned counsel for the petitioner has a contention that the direction issued by the appellate authority had not been complied with and that, the right for personal hearing has not been given. A perusal of Ext.P5 indicates that this is the second round in which the assessment had been made and sufficient opportunity had been given to submit their reply. The operative portion of the order passed by the assessing authority reads thus :
"I have carefully examined the reply filed by the assessee in detail. In the reply, the assessee has stated that the assessing authority has overlooked certain crucial facts, which caused the vast difference of closing stock with opening stock. But the assesee has not put forth any valid reason for this variation. Therefore it may be seen that the difference is nothing else, but the sales turnover.
The assessee has admitted the safe custody of closing stock with the partners, but they have reported the closure of business fully during the year 2009-10. Therefore the whole closing stock is to be assessable.
The assessee has stated that "Estimate must be based on material and supported by reasons", "Best judgment assessment cannot be on assumption and presumption" and "Best judgment assessment ought to be based on material discovered."
W.P.(C) No.10841 of 2016 3
The above 3 facts were satisfied in this order. The assessment is on the basis of clear material facts and all the evidences were fulfilled. Proved sales suppression and closing stock at the time of closure of business is assessable under KVAT Act, 2003.
In the circumstances, all the contentions raised by the assessee are overruled since devoid of any merit and it is decided to complete the assessment of the dealer for the period 2009-10 to the best of judgment u/s. 25(1) of the KVAT Act, 2003, as already proposed as under :-"
6. Whether this approach of the assessing officer is justifiable under the circumstances of the case and whether the objections submitted could have been further inquired into are all matters which requires an adjudication of facts, which cannot be adjudicated by this Court in the proceedings under Article 226 of the Constitution. Whether the particulars provided by the petitioner in their objection was sufficient enough to consider their defence and to arrive at a finding are all matters which could be considered by the appellate authority in a proper manner. Under such circumstances, I do not think that there is any merit in the contention that there is violation of principles of natural justice. The entire factual aspects of the matter has to be looked into, in order to arrive at such a conclusion and therefore, I do not intend to interfere with Ext.P5 at this stage.
Accordingly, reserving the right of the petitioner to prefer an appeal, this writ petition is closed. The petitioner is granted four W.P.(C) No.10841 of 2016 4 weeks' time to proceed further in the matter. In the meantime, the recovery steps shall be kept in abeyance.
Sd/-
A.M.SHAFFIQUE, JUDGE.
AV