Kerala High Court
M/S. Paragon Polymer Products Pvt. Ltd vs The Asst. Commissioner (Assessment) on 13 April, 2016
Author: K. Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
THURSDAY, THE 16TH DAY OF FEBRUARY 2017/27TH MAGHA, 1938
WP(C).No. 32349 of 2016 (P)
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PETITIONER:
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M/S. PARAGON POLYMER PRODUCTS PVT. LTD,
PB NO.61, PARAGON BUILDINGS,
SREENIVASA IYER ROAD, CHALUKUNNU,
KOTTAYAM - 686 001, REPRESENTED BY ITS
MANAGING DIRECTOR, SAJAN K. THOMAS.
BY ADVS.SRI.HARISANKAR V. MENON
SMT.MEERA V.MENON
RESPONDENT(S):
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1. THE ASST. COMMISSIONER (ASSESSMENT),
SPECIAL CIRCLE, DEPARTMENT OF COMMERCIAL TAXES,
KOTTAYAM - 686 001.
2. THE DEPUTY COMMISSIONER,
DEPARTMENT OF COMMERCIAL TAXES,
KOTTAYAM - 686 001.
BY GOVERNMENT PLEADER SRI V.K.SHAMSUDHEEN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 16-02-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
K.V.
WP(C).No. 32349 of 2016 (P)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1. COPY OF NOTICE ISSUED BY THE 1ST RESPONDENT
DATED 13.04.2016.
EXHIBIT P2. COPY OF LETTER SUBMITTED BY THE PETITIONER BEFORE THE
1ST RESPONDENT DATED 27.04.2016.
EXHIBIT P3. COPY OF OBJECTION FILED BY THE PETITIONER BEFORE THE
1ST RESPONDENT DATED 25.07.2016.
EXHIBIT P4. COPY OF ORDER ISSUED BY THE 1ST RESPONDENT
DATED 20.07.2016.
EXHIBIT P5. COPY OF RECONCILIATION STATEMENT OF THE PETITIONER.
EXHIBIT P6. COPY OF ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT
DATED 20.01.2016.
EXHIBIT P7. COPY OF APPLICATION FILED BY THE PETITIONER BEFORE THE
1ST RESPONDENT DATED 08.08.2016.
EXHIBIT P8. COPY OF JUDGMENT IN W.P.(C) NO.27087/2016 OF THIS
HON'BLE COURT DATED 17.08.2016.
EXHIBIT P9. COPY OF ORDER ISSUED BY THE 1ST RESPONDENT
DATED 27.09.2016.
EXHIBIT P10. COPY OF LOCAL DELIVERY BOOK DATED 26.07.2016.
EXHIBIT P11. COPY OF RECONCILIATION STATEMENT PRODUCED BEFORE THE
1ST RESPONDENT.
EXHIBIT P12. COPY OF JUDGMENT IN W.P.(C) NO.21568/2016 OF THIS
HON'BLE COURT DATED 27.06.2016.
RESPONDENT(S)' EXHIBITS NIL
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/TRUE COPY/
P.A.TO JUDGE
K.V.
K. VINOD CHANDRAN, J
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W.P(C) No. 32349 of 2016
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Dated this the 16th day of February, 2017
J U D G M E N T
The petitioner is an assessee under the Kerala Value Added Tax Act, 2003 (for short KVAT Act only). The petitioner is aggrieved with the order passed at Ext.P4, against which a rectification application was filed, which was also rejected by Ext.P9. The petitioner contends that a mistake was committed by the Department and the liability cast on the petitioner is only by reason of such mistake committed, while uploading the details in the KVATIS.
2. The petitioner is a registered dealer who also had inter-state transactions. Notice was issued under Ext.P1 dated 13.04.2016 proposing to assess the difference WPC.No.32349/2016 : 2 : in the stock transfer of the goods sent outside the State. The return showed a turnover of 25,522.84 lakhs while the KVATIS showed a turnover of Rs.27,055.86 lakhs. There was a difference of 1533.02 lakhs which was proposed to be assessed under the KVAT Act. Immediately it is to be noticed that when stock transfer details were taken from the KVATIS for the purpose of assessment necessarily assessment has to be under the Central Sales Tax Act and not under the KVAT Act. The assessment under the CST Act for the said year was already completed under Ext.P6.
3. The petitioner's contention is that the petitioner could prove before the officer that the details uploaded were defective insofar as the uploading made in the year 2012-13 relating to invoices, also of the prior years were already declared and F Forms submitted before the WPC.No.32349/2016 : 3 : assessing authority. The same also forms part of the assessment order passed in the earlier years. The petitioner was not diligent in appearing before the Assessing officer, is the contention taken by the learned Government Pleader in support of the order.
4. Be that as it may it could be examined afresh as to whether there was any actual suppression especially looking at the facts as stated by the petitioner. Considering the fact that the Assessing Officer has invoked the jurisdiction under the KVAT Act Ext.P4 has to be set aside. The order passed in rectification is of no consequence insofar as the assessment order itself having been set aside. The petitioner would appear before the Assessing Officer on 28.02.2017. The Assessing Officer would issue a notice reopening Ext.P6 assessment completed under the CST WPC.No.32349/2016 : 4 : Act and proposing to assess the alleged suppression under the CST Act. The notice shall be issued on the petitioner or his authorised representative when appearance is made on 28.02.2017 and personal acknowledgment taken. The petitioner would be entitled to produce the entire details within a period of two weeks from that day. The Assessing Officer would consider the issue and pass orders in accordance with law. The specific dates mentioned herein is only in the context of time for reopening of the assessment under the CST Act expiring on 31.03.2017.
Writ petition is allowed with the above observations.
Sd/-
(K. VINOD CHANDRAN, JUDGE)
jma //true copy//
P.A to Judge