Kerala High Court
Abdul Manaf vs Commercial Tax Officer on 7 November, 2014
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
FRIDAY,THE 7TH DAY OF NOVEMBER 2014/16TH KARTHIKA, 1936
WP(C).No. 28102 of 2014 (K)
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PETITIONER :
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ABDUL MANAF, AGED 35 YEARS,
S/O.ABDULLA, RESIDING AT KHADEEJA MANZIL,
KAKKOZHAN.P.O., PROPRIETOR, EVERLINE COMPANY,
AMBALAPPUZHA, ALLEPPEY DISTRICT.
BY ADVS.DR.K.B.MUHAMED KUTTY (SR.)
SRI.K.M.FIROZ
SMT.M.SHAJNA
SRI.S.KANNAN
RESPONDENTS :
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1. COMMERCIAL TAX OFFICER,
IST CIRCLE, ALAPPUZHA.
2. THE INSPECTING ASSISTANT COMMISSIONER,
COMMERCIAL TAXES, ALAPPUZHA.
3. COMMISSIONER OF COMMERCIAL TAXES,
OFFICE OF THE COMMISSIONER OF COMMERCIAL TAXES,
8TH FLOOR, KARAMANA, THIRUVANANTHAPURAM-695002.
4. STATE OF KERALA,
REPRESENTED BY PRINCIPAL SECRETARY, TAXES DEPARTMENT
SECRETARIAT, THIRUVANANTHAPURAM-695001.
BY SENIOR GOVERNMENT PLEADER SMT. SHOBA ANNAMMA EAPEN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 07-11-2014, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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WP(C).No. 28102 of 2014 (K)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1(A): ATRUE COPY OF THE SAMPLE PURCHASE BILL DT.16.3.13
ISSUED TO THE PETITIONER.
EXHIBIT P1(B): ATRUE COPY OF THE SAMPLE PURCHASE BILL DT.2.3.13
ISSUED TO THE PETITIONER.
EXHIBIT P1(C): A TRUE COPY OF THE SAMPLE PURCHASE BILL DT.7.3.13
ISSUED TO THE PETITIONER.
EXHIBIT P1(D): A TRUE COPY OF THE SAMPLE PURCHASE BILL DT.27.3.13
ISSUED TO THE PETITIONER.
EXHIBIT P1(E): A TRUE COPY OF THE SAMPLE PURCHASE BILL DT.27.3.13
ISSUED TO THE PETITIONER.
EXHIBIT P1(F): A TRUE COPY OF THE SAMPLE PURCHASE BILLS DT.25.9.2012
ISSUED TO THE PETITIONER.
EXHIBIT P1(G): A TRUE COPY OF THE SAMPLE PURCHASE BILLS DT.31.5.2012
ISSUED TO THE PETITIONER.
EXHIBIT P2(A): A TRUE COPY OF THE SUMMARY OF THE RETURN FOR THE
PERIOD 2012-13.
EXHIBIT P2(B): A TRUE COPY OF THE SUMMARY OF THE RETURN FOR THE
PERIOD 2013-14.
EXHIBIT P3: A TRUE COPY OF THE RETURN FOR THE PERIOD
FROM 2011-12 DT.15.8.2014.
EXHIBIT P3(A): ATRUE COPY OF THE RETURN FOR THE PERIOD FROM
2012-13 DT.15.8.2014.
EXHIBIT P3(B): A TRUE COPY OF THE RETURN FOR THE PERIOD FROM
2013-14 DT.15.8.2014.
EXHIBIT P4: ATRUE COPY OF THE STATEMENT OF PURCHASE EFFECTED
BY THE PETITIONER FOR THE YEAR 2011-12.
EXHIBIT P4(A): A TRUE COPY OF THE STATEMENT OF PURCHASE EFFECTED
BY THE PETITIONER FOR THE YEAR 2012-13.
EXHIBIT P4(B): A TRUE COPY OF THE STATEMENT OF PURCHASE EFFECTED
BY THE PETITIONER FOR THE YEAR 2013-14.
EXHIBIT P5: A TRUE COPY OF THE ORDER DT.18.2.2014 ISSUED BY THE 1ST
RESPONDENT CAHCELLING THE REGISTRATION UNDER THE
KVAT ACT.
WP(C).No. 28627 of 2010 (C)
EXHIBIT P6: A TRUE COPY OF THE CANCELLATION PARTICULARS DOWNLOADED
FROM THE KVAT WEBSITE OF COMMERCIAL TAXES DEPARTMENT.
EXHIBIT P7: A TRUE COPY OF THE ASSESSMENT ORDER FOR THE YEAR 2011-12
DT.1.7.2014 ISSUED BY THE 1ST RESPONDENT ALONG WITH DEMAND
NOTICE.
EXHIBIT P8: A TRUE COPY OF THE ASSESSMENT ORDER FOR THE YEAR 2012-13
DT.1.7.2014 ISSUED BY THE 1ST RESPONDENT ALONG WITH DEMAND
NOTICE.
EXHIBIT P9: A TRUE COPY OF THE ASSESSMENT ORDER FOR THE YEAR 2013-14
DT.1.7.2014 ISSUED BY THE 1ST RESPONDENT ALONG WITH DEMAND
NOTICE.
EXHIBIT P10: A TRUE COPY OF THE PENALTY ORDER DTD.27.6.2014 FOR THE YEAR
2011-12 ALONG WITH DEMAND NOTICE.
EXHIBIT P11: A TRUE COPY OF THE PENALTY ORDER DTD.11.7.2014 FOR THE YEAR
2012-13 ALONG WITH DEMAND NOTICE.
EXHIBIT P12: A TRUE COPY OF THE PENALTY ORDER DTD.11.7.2014 FOR THE YEAR
2013-14 ALONG WITH DEMAND NOTICE.
EXHIBIT P13: A TRUE COPY OF THE LETTER DTD.30.7.2014 SENT BY THE
PETITIONER TO THE 1ST RESPONDENT.
EXHIBIT P14: A TRUE COPY OF THE LETTER DTD.2.8.2014 FROM THE 1ST
RESPONDENT TO THE PETITIONER.
RESPONDENT(S)' EXHIBITS : NIL.
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//TRUE COPY//
P.S. TO JUDGE
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P.R. RAMACHANDRA MENON, J.
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W.P.(C)No.28102 OF 2014
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Dated this the 7th November, 2014
J U D G M E N T
The petitioner has approached this Court with the following prayers:
i) to declare that Rule 24D of the KVAT Rules is only directory and not mandatory and the petitioner is entitled to file the return manually.
ii) to call for the records leading to Exhibit P14 and quash the same by issue of a writ of certiorari
iii) to call for the records leading to Ext.P5 to P12 and quash the same by issuing a writ of certiorari or any other appropriate direction or order;
iv) to stay the recovery steps pursuant to Ext.P7 to P12;
v) to grant such other relief as this
Hon'ble Court may deem fit in the
circumstances of the case."
2. Heard the learned Sr. Counsel for the petitioner as well as the learned Government Pleader for the respondents. The main challenge is with regard to Ext.P5 order, whereby registration of the petitioner has been cancelled by the first respondent/Commercial Tax Officer, which according to the W.P.(C)No.28102 OF 2014 2 petitioner is not in conformity with the statutory requirements, as without issuing proper notice and without giving an opportunity of hearing. The petitioner challenges the correctness and sustainability of Exts.P7 to P9 assessment orders as well as Exts.P10 to P12 orders imposing penalty in respect of different assessment years.
3. During the course of hearing, the learned Counsel for the petitioner submits that the proper course, as sought to be pursued in terms of Rule 17(19) of the Kerala Value Added Tax Rules has not been complied with by effecting necessary publication and sending proper communication after cancellation of registration of the petitioner . The said rule reads as follows:
Rule 17(19):
"(19) Where a certificate of registration is cancelled, the registering authority shall issue to the dealer concerned a notice in Form No.5B and shall publish the details in at least two leading dailies in the State and also in the website of the Commercial Taxes Department".
4. After hearing both the sides, this Court finds that even W.P.(C)No.28102 OF 2014 3 if publication has not been effected after cancellation of the registration, that cannot come to the rescue of the petitioner, so far as the purpose of the rule is something else, to make others vigilant in dealing with or transacting with the persons like the petitioner, whose registration has been cancelled.
5. Regarding absence of proper notice before cancellation of registration, the learned Government Pleader points out that a notice was originally sent to the petitioner by registered post, in conformity with the statutory requirements, particularly as per the mandate of Section 88 of the Kerala Value Added Tax Act, but the same was returned "unclaimed". Thereafter, a further notice was sought to be served by 'affixture' and as the petitioner did not turn up, the proceedings were finalised.
6. This Court finds that the challenge now raised from the part of the petitioner with reference to the absence of effective opportunity before cancellation of registration is not liable to be entertained by this Court. This however will not disable the petitioner to have the registration restored, if so desired, more so, in view of the communication issued to the petitioner by way W.P.(C)No.28102 OF 2014 4 of Ext.P14.
7. Coming to the scope of Rule 24D of the KVAT Rules, there is a prayer for the petitioner to declare the said Rules as only declaratory and not mandatory. The learned Sr. Counsel submits that filing of return 'Online' is not at all mandatory as per the statute and it is always a matter of option for the assessee. This Court finds that the said proposition cannot be correct or sustainable in view of amendment of the statute by way of introduction of Section 93A (Electronic filing and payment) of the KVAT Act with effect from 01.04.2012 as per Act 16 of 2012.
The said provision reads as follows:
"93A. Electronic filing and payment:-
(1) The Government may require the assessees to file returns, forms and other statements to be submitted by him under this Act and make the payment of tax, fee or other amounts due under this Act, electronically through the official website of the Commercial Taxes Department.
(2) Notwithstanding anything contained in Section 92, the Commissioner may, for the W.P.(C)No.28102 OF 2014 5 purpose of implementation of electronic filing of returns, forms and other statements or electronic payment of tax, fee or other amounts, by notification in the Gazette, make suitable modifications in the forms prescribed under this Act and make necessary changes in the manner of submission and authentification of such returns, forms and other statements. The modifications or changes so made shall be published in the website of the Commercial Taxes Department also and in such other manner as the Commissioner may deem fit."
8. In the above circumstance, this Court finds that the relief sought for as per the first prayer is also not liable to be entertained by this Court, in view of categoric stipulation under Section 93A. The rest is with regard to the correctness and sustainability of the impugned orders by way of assessment as well as penalty. The petitioner is having an effective remedy as provided under the statute, more so when the facts and figures require to be considered by the competent authority with reference to the relevant records. This cannot be an exercise to be pursued by this Court, invoking the discretionary jurisdiction W.P.(C)No.28102 OF 2014 6 under Article 226 of the Constitution of India.
In the said circumstance, the petitioner is relegated to avail the statutory remedy, if aggrieved of Exts.P5 to P12 and P14 orders. Without prejudice to the rights and liberties of the petitioner to pursue statutory remedy in this regard, interference is declined and the writ petition is dismissed.
P.R.RAMACHANDRA MENON JUDGE lk