M/S.Mofash Agencies vs The Assistant Commissioner
2021 Latest Caselaw 11043 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                  THE HONOURABLE MR. JUSTICE A.M.BADAR

   WEDNESDAY, THE 07TH DAY OF APRIL 2021 / 17TH CHAITHRA, 1943

                        WP(C).No.8774 OF 2021(V)


PETITIONER/S:

                M/S.MOFASH AGENCIES
                PP-III, 757A, PANAVALLY PANCHAYATH,
                 THRICHATTUKULAM P.O., -688586, CHERTHALA,
                ALAPPUZHA DISTRICT, REPRESENTED BY ITS MANAGING
                PARTNER SHAMMYRAJ K.M.

                BY ADVS.
                SRI.V.DEVANANDA NARASIMHAM
                SRI.P.H.RIYAS

RESPONDENT/S:

      1         THE ASSISTANT COMMISSIONER
                (PREVIOUSLY KNOWN AS STATE TAX OFFICER,
                KSGST DEPARTMENT, KUTHIYATHODU-688533,
                CHERTHALA, ALAPPUZHA DISTRICT.

      2         THE STATE OF KERALA,
                KERALA STATE GOODS AND SERVICE TAX DEPARTMENT,
                SECRETARIAT, THIRUVANANTHAPURAM-695001,
                REPRESENTED BY THE SECRETARY TO TAXES.




                SMT. THUSHARA JAMES, GOVERNMENT PLEADER

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
07.04.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.8774 OF 2021            2



                             JUDGMENT

Dated this the 7th day of April 2021

Heard both sides.

2. Learned counsel for the petitioner submits that the 1st

respondent has passed the ex parte order at Ext.P2 making

assessment under Section 25 of the Kerala Value Added Tax Act

(hereinafter referred to as 'the KVAT Act') in the year 2016-17,

levying tax on unaccounted purchases denying IPT credit under

Section 25AA(2)(a) of the KVAT Act. According to the learned

counsel for the petitioner, the petitioner then filed an application for

rectification of mistake at Ext.P3 as per the provisions under

Section 66 of the KVAT Act and the said application was disposed of

with an order at Ext.P4 with direction to correct some arithmetical

errors. The petitioner, thereafter, submitted an application at Ext.P5

for rectification under Section 66 of the KVAT Act against the order

at Ext.P4, which is the rectified assessment order for the year

2016-17. The grievance of the petitioner is to the effect that the

said rectification application at Ext.P5 is not being considered by

the respondents. Learned counsel for the petitioner submits that

the respondents be directed to dispose of the application at Ext.P5.

3. Learned Government Pleader submits that the

rectification application submitted by the petitioner seeking

rectification in the assessment year for the year 2016-17 is already

disposed of by passing the rectified assessment order at Ext.P4 and

the petitioner cannot go on with rectification application again and

again. Learned Government Pleader submits that the remedy, if

any, of the petitioner is to go for statutory appeal.

4. I have considered the submissions so advanced and

perused the materials placed before me.

5. It is seen that the petitioner had preferred rectification

application under Section 66 of the KVAT Act after issuance of the

assessment order under Section 25 of the KVAT Act for the year

2016-17. The rectified assessment order has already been passed

which is at Ext.P4. Dissatisifed with the said rectified assessment

order, petitioner has again preferred further application which is at

Ext.P5. The endorsement on that application makes it clear that

the same has received by the authority on 26.03.2021. Within few

days, the petitioner has approached this Court and the learned

counsel for the petitioner is seeking a direction to the respondents

to decide the application at Ext.P5 in a time bound manner.

6. I am of the considered view that once the rectification

application has been disposed of and the rectified assessment order

is passed, the remedy, if any, which can be available to the

petitioner is that of challenging the rectified assessment order in a

statutory appeal. He cannot go on by filing rectification applications

again and again. The application at Ext.P5 is submitted by the

petitioner recently on 26.03.2021 seeking further rectification. The

petitioner is free to approach the respondents for getting that

application decided. However, as the application at Ext.P5 is

submitted recently by the petitioner and precisely on 26.03.2021, I

am of the considered view that respondents cannot be directed to

decide the said application in a time bound manner. Needless to

mention that the petitioner is free to challenge the rectified

assessment order by filing statutory appeal. The petition as such

is devoid of merits and the same is accordingly dismissed.

Sd/-

                                                  A.M.BADAR
ajt                                                 JUDGE





                            APPENDIX
PETITIONER'S/S EXHIBITS:

EXHIBIT P1              TRUE COPY OF THE ANNUAL RETURN IN FORM-10

FOR THE YEAR 2016-17 E-FILED THROUGH KVATIS BEFORE THE 1ST RESPONDENT ON 16.6.2017.

EXHIBIT P2 TRUE COPY OF ASSESSMENT ORDER NO.32041815344/2016-17 DATED 15.1.20 ISSUED BY 1ST RESPONDENT TO THE PETITIONER.

EXHIBIT P3              TRUE COPY OF THE APPLICATION FOR
                        RECTIFICATION OF MISTAKE APPARENT ON THE
                        FACE OF RECORD U/S 66 DATED 31.1.20 DULY
                        ACKNOWLEDGED BY 1ST RESPONDENT ON 3.2.20.

EXHIBIT P4              TRUE COPY OF THE REVISED ASSESSMENT ORDER
                        PASSED U/S.66 OF THE KVAT ACT ON 15.1.20
                        FOR 16-17.

EXHIBIT P5              TRUE COPY OF THE 2ND RECTIFICATION
                        APPLICATION FILED U/S 66 OF THE KVAT ACT
                        FOR THE YEAR 2016-17 DATED 10.11.20 RE-
                        SUBMITTED ON 26.3.21 BEFORE THE 1ST
                        RESPONDENT.