Sreekumari P.S vs Commercial Tax Officer

Kerala High Court

Sreekumari P.S vs Commercial Tax Officer on 20 May, 2024

Author: P Gopinath

Bench: P Gopinath

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                 THE HONOURABLE MR. JUSTICE GOPINATH P.
        MONDAY, THE 20TH DAY OF MAY 2024 / 30TH VAISAKHA, 1946
                        WP(C) NO. 32205 OF 2016
PETITIONER/S:

            SREEKUMARI P.S., PROPRIETRIX,
            THARAYIL ELECTRICALS AND SPARES,KOLLAKADAVU P.O.,
            CHENGANOOR- 690 509.
            BY ADV SRI.TOMSON T.EMMANUEL


RESPONDENT/S:

    1       COMMERCIAL TAX OFFICER
            COMMERCIAL TAXES, MINI CIVIL STATION,
            CHENGANOOR- 689 121.
    2       COMMISSIONER OF COMMERCIAL TAXES
            TAX TOWER, KARAMANA P.O, THIRUVANANTHAPURAM- 695 022.



            DR.THUSHARA JAMES ( SR GP)


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
20.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 32205 OF 2016                2



                              JUDGMENT

The petitioner is a registered dealer under the Kerala Value Added Tax Act, 2003 (hereinafter referred to as 'KVAT Act'). According to the petitioner, for the assessment year 2011-12, there was a mistake committed by the petitioner while uploading the monthly returns, which was duly noticed by the statutory auditors. According to the petitioner, she therefore filed Ext.P1 request dated 25.06.2012 for revision of returns under the provisions of Section 42(2) of the KVAT Act. The petitioner also states that Ext.P1 e-mail request was also accompanied by Exts.P1(a) to P1(c) documents, which gives the complete details of sales and purchases effected by the petitioner for the relevant period. The petitioner has approached this Court, being aggrieved by the fact that despite filing Ext.P1 request and despite uploading the audit report (Ext.P3) along with Ext.P3(a) audit report note, a notice has been issued to the petitioner under Section 25(1) of the KVAT Act, about four years after, without taking into consideration of the fact that the petitioner had requested for revision of returns under Section 42(2) of the KVAT Act. The notice issued to the petitioner under Section 25(1) of the KVAT Act is on record as Ext.P4. The petitioner WP(C) NO. 32205 OF 2016 3 preferred Exts.P5 and P5(a) replies to Ext.P4 notice and has thereafter, approached this Court, seeking the following reliefs:-

''i) to call the records of the 1 st respondent and to issue a writ in the nature of mandamus or any other appropriate writ or order directing 1 st respondent to consider Ext.P1 request along with Ext.P1(a) to Ext.P1(c) prior to completion of assessment;

ii) to issue a writ in the nature of mandamus or any other appropriate writ or order directing 1 st respondent to consider Ext.P5(a) request along with Ext.P1(a) to Ext.P1(c) prior to completion of assessment;

iii) to issue a writ in the nature of mandamus or any other appropriate writ or order directing 1 st respondent to verify the books of accounts of the petitioner in accordance with Ext.P6 Circular issued by the 2 nd respondent, prior to completion of assessment.

2. The learned Senior Government Pleader appearing for the respondents would submit that the petitioner is not entitled to any reliefs as prayed for in the writ petition. It is submitted that there is nothing on record to indicate that the petitioner was actually prevented from uploading a revised return under Section 42(2) of the KVAT Act. It is submitted that, as early as on 14.09.2012, the petitioner was issued with a communication, requiring her to intimate the reasons for filing of a revised return. It is submitted that, the petitioner having not filed any revised return, cannot challenge the issuance of the notice under Section 25(1) of the KVAT Act. It is submitted that, all the WP(C) NO. 32205 OF 2016 4 contentions taken by the petitioner in this writ petition can be properly raised before the competent authority and the same will be considered by the competent authority. It is pointed out that the reconciliation statement and full details of all sales and purchases effected by the petitioner have not been produced so far before the competent authority.

3. Learned counsel appearing for the petitioner, in reply, would submit that the petitioner could not file any revised returns, as at the relevant time, the returns were to be filed online and unless the portal was opened, the petitioner was not in a position to file any revised returns.

4. Having heard the learned counsel appearing for the petitioner and the learned Senior Government Pleader appearing for the respondents, I am of the view that the writ petition can be disposed of, permitting the petitioner to raise all contentions, including the contention that he had requested for filing revised returns under Section 42(2) of the KVAT Act before the authority, who issued P4, namely, the 1st respondent. It is seen from Ext.P4 that it is essentially a show cause notice and the petitioner has been permitted to raise all contentions by filing objections. The 1st respondent has also, in compliance with Ext.P6 Circular, WP(C) NO. 32205 OF 2016 5 offered to the petitioner, an opportunity of personal hearing. It is therefore, open to the petitioner to raise all contentions before the 1st respondent, including the contention that she should have been permitted to file a revised return in terms of the provisions contained under Section 42(2) of the KVAT Act, if necessary, after taking necessary concurrence from the 2 nd respondent. While taking a decision, the 1 st respondent shall also have due regard to the judgment of the Division Bench of this Court in State of Kerala Vs. N.N. Enterprises [(2013) 21 KTR 75 (Ker)]. The petitioner shall appear before the 1 st respondent at 11.30 A.M on 03.06.2024, and thereafter, the 1 st respondent shall proceed to decide the matter, as directed above, after affording an opportunity of hearing to the petitioner. The proceedings shall be completed by the 1 st respondent as early as possible, at any rate, within a period of three months from the date of receipt of a certified copy of this judgment.

The writ petition is disposed of, with the above directions.

Sd/-

GOPINATH P. JUDGE ajt WP(C) NO. 32205 OF 2016 6 APPENDIX OF WP(C) 32205/2016 PETITIONER EXHIBITS EXT. P1 TRUE COPY OF E-MAIL REQUEST DATED 25.06.2012 MADE BY PETITIONER BEFORE 1ST RESPONDENT FOR REVISING RETURN FOR 2011-12, BASED ON THE DIRECTIONS OF THE AUDITOR.

EXT. P1(a) TRUE COPY OF PURCHASE AND SALES REGISTER FOR NOVEMBER 2011, PRODUCED ALONG WITH EXT. P1. EXT. P1(b) TRUE COPY OF PURCHASE AND SALES REGISTER FOR FEBRUARY 2012, PRODUCED ALONG WITH EXT. P1. EXT. P1(c) TRUE COPY OF PURCHASE AND SALES REGISTER FOR MARCH 2012, PRODUCED ALONG WITH EXT. P1.

EXT. P2 TRUE COPY OF ANNUAL E-RETURN DATED 10.9.2012 SUBMITTED FOR 2011-12, WHILE EXT P1 REQUEST IS PENDING.

EXT. P3 TRUE COPY OF AUDIT REPORT DATED 17.06.2013 IN FORM NO. 13 AND 13A, SUBMITTED FOR THE YEAR 2011-12, ON THE BASIS OF BOOKS OF ACCOUNTS AND AFTER CONSIDERING REVISED RETURN REQUEST CITED 1ST MADE BY PETITIONER.

EXT. P3(a) TRUE COPY OF LETTER DATED 17.06.2013 FOR THE AUDIT REPORT NOTE, SUBMITTED ALONG WITH EXT P3, WHICH WAS ACKNOWLEDGED BY 1ST RESPONDENT ON 19.06.2013.

EXT. P4 TRUE COPY OF NOTICE DATED 12.08.2016 U/S 25(1) OF KVAT ACT, ISSUED TO PETITIONER BY SCRUTINY OF ANNUAL RETURN WITH AUDIT REPORT, PROPOSING BEST JUDGMENT ASSESSMENT FOR 2011- 12, WITHOUT CONSIDERING EXT P1 REQUEST.

EXT. P5 TRUE COPY OF REPLY DATED 19.09.2016 SUBMITTED BEFORE 1ST RESPONDENT AGAINST EXT P4 NOTICE. EXT. P5(a) TRUE COPY OF DETAILED REPLY DATED 28.09.2016 SUBMITTED BEFORE 1ST RESPONDENT AGAINST EXT P4 NOTICE, WHICH IS IN CONTINUATION TO EXT. P 5. EXT. P6 TRUE COPY OF CIRCULAR NO. 27/2015 DATED 11.11.2015 ISSUED BY 2ND RESPONDENT, DIRECTING ASSESSING AUTHORITY TO COMPLETE ASSESSMENT ONLY AFTER VERIFICATION OF BOOKS OF ACCOUNTS.

EXT. P7 TRUE COPY OF NOTICE DATED 23.09.2016,FOR A PERSONAL HEARING ON 04.10.2016, AGAINST EXT. P5, COMMUNICATED TO PETITIONER ON 01.10.2016.