Kerala High Court
M/S.Bhagavath Gardens vs Commercial Tax Officer
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
TUESDAY, THE 5TH DAY OF JUNE 2012/15TH JYAISHTA 1934
WP(C).No. 12765 of 2012 (U)
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PETITIONERS:
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M/S.BHAGAVATH GARDENS,
MARKET ROAD, CHENGANNUR
REPRESENTED BY K.A.VISWAMBARAN, MANAGING PARTNER
BY ADVS.SRI.HARISANKAR V. MENON
SMT.MEERA V.MENON
SRI.MAHESH V.MENON
RESPONDENTS:
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1. COMMERCIAL TAX OFFICER
CHENGANNUR-689 121.
2. INTELLIGENCE OFFICER,
SQUAD NO.III, DEPARTMENT OF COMMERCIAL TAXES
ALAPPUZHA 688 001.
3. DEPUTY COMMISSIONER (APPEALS)
DEPARTMENT OF COMMERCIAL TAXES, KOLLAM-691 001.
BY GOVERNMENT PLEADER MS. SHPBA ANNAMMA EAPEN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05-
06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
:2:
W.P.(C) NO. 12765 OF 2012
APPENDIX
PETITIONER EXHIBITS
EXHIBIT-P1 - COPY OF ORDER PASSED BY THE 2ND RESPONDENT DT.29-10-
2011
EXHIBIT-P2 - COPY OF APPEAL FILED BY THE PETITIONER BEFORE THE 3RD
RESPONDENT DTD.02-12-2011
EXHIBIT-P3 - COPY OF ORDER ISSUED BY THE 3RD RESPONDENT DT.13-02-
2012
EXHIBIT-P4 - COPY OF NOTICE ISSUED BY THE 1ST RESPONDENT DTD.23-
05-2012.
EXHIBIT-P5 - COPY OF LETTER SUBMITTED BY THE PETITIONER BEFORE THE
1ST RESPONDENT DATED 26-05-2-2012
/TRUE COPY/
P.A. TO JUDGE
P.R. RAMACHANDRA MENON J.
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W.P(C) No. 12765 of 2012
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Dated, this the 5th day of June, 2012
JUDGMENT
The question involved in this case is whether the assessment proceedings pursuant to Ext. P4 should be kept in abeyance because of the pendency of Ext. P2 appeal preferred by the petitioner against Ext. P1 order imposing penalty under Section 45(A) of the KGST Act..
2. Pursuant to some incriminating circumstances brought on records, the petitioner was proceeded against, proposing to impose penalty under Section 45(A). After considering the explanation offered, the matter was finalized and Ext. P1 order was passed by the second respondent on 29.10.2011 finding the petitioner guilty and imposing penalty to the extent as specified therein. Being aggrieved of the same, the petitioner preferred Ext.P2 appeal along with petition for stay. After considering the I.A. for stay, Ext. P3 interim order was passed, subject to the condition that the W.P.(C) No. 12765 of 2012 : 2 : petitioner satisfied 1/3rd of the liability, which is stated as complied with. It is in the meanwhile, that the petitioner was served with Ext. P4 notice in respect of the assessment proceedings.
3. The case of the petitioner as projected in the writ petition is that the impugned notice vide Ext. P4 is nothing but an abuse to the process of law, more so, when the contents are mostly reproduced as given in Ext. P1, which is under challenge. The learned counsel for the petitioner submits that this will lead to multiplicity of the litigations, it being the root cause for the assessment proceedings. The learned counsel for the petitioner submits that since the respondents have not yet finalized the penalty proceedings, it is not at all proper on the part of the assessing authority to proceed with further steps pursuant to Ext. P4.
4. The learned Government Pleader on the other hand submits that the assessment proceedings are independent of penalty proceedings and hence that there is absolutely no W.P.(C) No. 12765 of 2012 : 3 : merit in the contention of the petitioner that the assessment proceedings are to be kept in abeyance till the finalization of penalty proceedings.
5. True, the petitioner has been granted interim order of stay by the appellate authority during the pendency of Ext. P2 appeal preferred against Ext. P1 order imposing penalty, but the said stay is only in respect of the liability flowing from Ext. P1 order. The assessment proposed by the first respondent by issuing Ext. P4 is with reference to the facts and figures, which are to be established by the department or to be disputed by the assessee in the course of said proceedings based on which, the final order has to be passed in the assessment proceedings. This of course is an independent proceeding and the petitioner is at liberty to raise objections as to the contents of the notice. It has to be borne in mind that the petitioner is only in the first round of litigation, and he is having further remedy as provided under the Statute, if the order to be passed in Ext. P2 goes against the petitioner. W.P.(C) No. 12765 of 2012 : 4 :
6. In the above circumstances, this Court does not find any merit in the contentions raised by the petitioner, so as to keep the assessment proceedings idle, till the penalty proceedings are finalized. Hence interference is declined and the writ petition is dismissed. However, since the time stipulated in Ext. P4 is already over, the petitioner is given further time by two weeks to file the statement of objections, if any.
Sd/-
P. R. RAMACHANDRA MENON, (JUDGE) kmd