W.P.(C)No.25891/2016 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
TUESDAY, THE 31ST DAY OF MAY 2022 / 10TH JYAISHTA, 1944
WP(C) NO. 25891 OF 2016
PETITIONER:
M/S.PHOTO PERFECT DIGITAL OFFSET PRESS
33/2844A, POTTAPARAMBIL BUILDING,CHAKKARAPARAMBU
THAMMANAM P.O.,COCHIN, REPRESENTED BY ITS PARTER
BIJU PAUL.
BY ADVS.
SRI.A.KUMAR
SRI.P.J.ANILKUMAR
SMTG.MINI1748
SRI.P.S.SREE PRASAD
RESPONDENT:
1 INTELLIGENCE OFFICER (IB)
OFFICE OF THE DY. COMMISSIONER (INT)DEPARTMENT OF
COMMERCIAL TAXES,ERNAKULAM - 682 015.
2 COMMERCIAL TAX OFFICER
2ND CIRCLE,KALAMASSERY 683 104
BY SMT. JASMIN M.M.- GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
31.05.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C)No.25891/2016 2
JUDGMENT
The petitioner has approached this Court challenging Ext.P12 order. Through Ext.P12 order, the Commercial Tax Officer, 2 nd Circle, Kalamassery had completed assessment proceedings in respect of the petitioner for the assessment year 2014-2015 and certain demand was also raised on the petitioner.
2. The petitioner was a registered dealer under the KVAT and CST engaged in the business of conducting a Digital Offset Press. It is submitted that the petitioner used to prepare what is commonly known in the market as a "Photo Book", after obtaining photographs in digital form from customers. It is submitted that the rate of tax in respect of "Photo Book" under the KVAT was 5% (under Entry 100(5) of III Schedule of the KVAT Act), while a completely distinct product namely "Photo Album" was taxed at the rates applicable under Entry 77(6) of a notification, namely, SRO No.82/06 at the rate of 14.5%. It is submitted that when the penalty proceedings were initiated against the petitioner for 2014-2015, the petitioner filed an application for compounding in which he admitted that the product in question was a "Photo Album" and Ext.P7 compounding order was passed treating the product of the petitioner to be "Photo Album" whereas in reality, the product was a "Photo Book". It is submitted that after Ext.P7 compounding order was passed, a clarification was issued by the Department (Ext.P5 dated 6.1.2016) which is after the date of Ext.P7 compounding order. According to the learned counsel, Ext.P5 clarifies that the product of the petitioner cannot be taxed at the higher rate applicable W.P.(C)No.25891/2016 3 to "Photo Album". He submits that in respect of the very same assessment year, the assessment was completed against the petitioner by Ext.P12 (the impugned order) treating the product of the petitioner to be "Photo Album" instead of "Photo Book" entirely relying on Ext.P7 compounding order and without taking into consideration Ext.P5 clarification.
3. The learned Government Pleader has taken me through Ext.P12 order. It is submitted that there are several issues which has been considered in Ext.P12 and the question as to whether the product of the petitioner was "Photo Book" or "Photo Album" was only one among them. It is submitted that considering the above, it was only appropriate for the petitioner to have approached the Appellate Authority challenging Ext.P12 instead of filing a writ petition before this Court. It is submitted there is absolutely no mistake or error in Ext.P12 and the finding in Ext.P12 that the product of the petitioner is "Photo Album" and not "Photo Book" is a factual determination and the authority was well within its rights to take into consideration the petitioner's own showing in his application for compounding that the product in question was "Photo Albums" and was not a "Photo Book". It is submitted that the petitioner cannot be granted the relief sought in a writ petition under Article 226 of the Constitution of India, when he has an effective alternate remedy.
4. Having heard the learned counsel for the petitioner and the learned Government Pleader, I am of the opinion that this writ petition can be disposed of directing reconsideration of one of the issues decided in Ext.P12 namely the question as to whether the product of the petitioner W.P.(C)No.25891/2016 4 was "Photo Album" or "Photo Book". I am inclined to direct reconsideration because on a reading of Ext.P12, it is clear that the authority while issuing Ext.P12 and determining the question as to whether the product of the petitioner was of a "Photo Book" or "Photo Album" had relied completely on Ext.P7 compounding order and had refused to look at Ext.P5 clarification which, according to the petitioner, would have tilted the matter completely in his favour. Therefore, I set aside Ext.P12 order and remand the matter to the competent authority who will reconsider the issue as to whether the product of the petitioner was "Photo Album" or "Photo Book" also taking into consideration Ext.P5 Circular and without relying solely on Ext.P7 compounding order in which the product of the petitioner was determined to be a "Photo Album". I make it clear that I have remanded the matter to the competent authority only for consideration of the above point and there need not be a reconsideration of any other issue which has been decided by Ext.P12. The competent authority shall reconsider the issue as above and issue a fresh composite order in respect of all issues (without reconsidering any other issue), within a period of two months from the date of receipt of a certified copy of this judgment. The petitioner shall also be afforded an opportunity of being heard, before the proceedings are finailized.
The writ petition is disposed of as above.
Sd/-
GOPINATH P.
JUDGE acd W.P.(C)No.25891/2016 5 APPENDIX OF WP(C) 25891/2016 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF INVOICE DATED 4/2/2015 EXHIBIT P1(A) TRUE COPY OF INVOICE DATED 2/3/2015 EXHIBIT P2 TRUE COPY OF MONTHLY RETURNS FOR THE MONTH OF FEBRUARY DATED 13/3/2015 EXHIBIT P2(A) TRUE COPY OF MONTHLY RETURNS FOR THE MONTH OF MARCH DATED 16/4/2015 EXHIBIT P3 TRUE COPY OF ANNUAL RETURN FOR ASSESSMENT YEAR 2014-2015 DATED 25/5/2015 EXHIBIT P4 TRUE COPY OF SUMMARY STATEMENT INDICATING THE MONTHLY SUMMARY OF SALE BOOKLETS FOR THE PERIOD 1/4/2014-
31/03/2015
EXHIBIT P5 TRUE COPY OF THE ORDER OF CLARIFICATION
DATED 6/1/2015
EXHIBIT P6 TRUE COPY OF THE APPLICATION FOR
COMPOUNDING DATED 30/6/2015
EXHIBIT P7 TRUE COPY OF COMPOUNDING ORDER DATED
6/7/2015
EXHIBIT P8 TRUE COPY OF THE APPLICATION FOR
RECTIFICATION DATED 13/6/2015
EXHIBIT P9 TRUE COPY OF THE ORDER DATED 27/8/2016
REJECTING THE RECTIFICATION APPLICATION
EXHIBIT P10 TRUE COPY OF THE NOTICE DATED 26/12/2015
EXHIBIT P11 TRUE COPY OF THE REPLY DATED 28/1/2016
EXHIBIT P12 TRUE COPY OF THE ASSESSMENT DATED
18/5/2016