Hotel Edassery Mansion vs State Tax Officer (Intelligence)
2021 Latest Caselaw 5899 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                 THE HONOURABLE MR. JUSTICE A.M.BADAR

    THURSDAY, THE 18TH DAY OF FEBRUARY 2021 / 29TH MAGHA,1942

                       WP(C).No.1807 OF 2021(A)


PETITIONER:

               HOTEL EDASSERY MANSION
               37/2342, KALOOR ROAD, KATHRIKADAVU, KOCHI 682 017,
               REP.BY ITS MANAGING PARTNER, SRI. MITHUN DAVIS

               BY ADV. SRI.TOMSON T.EMMANUEL

RESPONDENTS:

      1        STATE TAX OFFICER (INTELLIGENCE)
               SQUAD NO.VI, STATE GOODS AND SERVICES TAX DEPARTMENT,
               EDAPPALLY, KOCHI 682 024

      2        DEPUTY COMMISSIONER
               STATE GOODS AND SERVICES TAX COMPLEX, SPECIAL CIRCLE-
               III, THEVARA, KOCHI 682 015

      3        DEPUTY COMMISSIONER
               STATE GOODS AND SERVICES TAX DEPARTMENT, KAKKANADU,
               ERNAKULAM, KOCHI 682 030




               GP- SMT. THUSHARA JAMES

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
18.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.1807 OF 2021(A)

                                        2

                               JUDGMENT

Dated this the 18th day of February 2021

Heard the learned counsel appearing for the petitioner.

2. He drew my attention to the notice under Section 45A of

the KGST Act, 1963, Ext.P2 and argued that this notice was duly

replied by the communication at Ext.P3, where personal hearing was

sought. It is further submitted by the learned counsel for the

petitioner that the order at Ext.P4 itself shows that bills were

produced. However, on the erroneous presumption that bills were not

produced, the State Tax Officer (Intelligence) had passed order under

Section 45A of the KGST Act, 1963 imposing penalty of

Rs.15,83,780/- on the petitioner. The learned counsel for the

petitioner submits that position of laws is settled by this Court and

therefore, the impugned order, Ext.P4 deserves to be quashed and set

aside.

3. The learned Government Pleader drew my attention to the

impugned order and more particularly, the finding of fact recorded by

the State Tax Officer in the said order to the effect that the assessee

has not produced the sale bills against the order ticket to prove its

case. On instructions from the concerned Officer, the learned

Government Pleader makes a statement that in the penalty WP(C).No.1807 OF 2021(A)

proceedings which ultimately culminated into passing of order at

Ext.P4, no sale bills were produced by the petitioner. Thus, the matter

rest on disputed question of facts, as the petitioner is stating that the

bills were produced, whereas the learned Government Pleader

appearing for the respondents submits that sale bills were not

produced during the penalty proceedings.

4. The petitioner has also prayed for opportunity of personal

hearing, which according to him was not granted.

In this view of the matter, the proper forum for adjudicating the

correctness of the impugned order at Ext.P4 would be the statutory

appellate authority as provided by Section 35 of the Kerala General

Sales Tax Act. The petition is therefore dismissed in the wake of

alternative and most efficacious statutory appellate remedy available

to the petitioner.

Sd/-

A.M.BADAR Nsd //true copy// JUDGE PA to Judge WP(C).No.1807 OF 2021(A)

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF SHOP INSPECTION REPORT NO.098369 DATED 6.7.2019 RECORDED BY 1ST RESPONDENT

EXHIBIT P2 TRUE COPY OF NOTICE NO.VI/INS/2/2019-20 DATED 13.7.2020 ISSUED U/S.45A OF THE KGST ACT, PROPOSING PENALTY IN ESTIMATING TURNOVER

EXHIBIT P3 TRUE COPY OF REPLY DATED 24.8.2020 SUBMITTED AGAINST EXT. P2 NOTICE BEFORE 1ST RESPONDENT, ALONG WITH SUPPORTING DOCUMENTS

EXHIBIT P3 (A) TRUE COPY OF SETTLEMENT SUBMITTED ALONG WITH EXTP3 REPLY FOR THE CALCULATION OF GROSS PROFIT

EXHIBIT P4 TRUE COPY OF ORDER DATED 30.11.2020 SERVED TO PETITIONER ON 30.12.2020 BY 1ST RESPONDENT, IMPOSTING PENALTY U/S.45 A TO THE KGST ACT IN ESTIMATING PROFIT

EXHIBIT P5 TRUE COPY OF JUDGMENT DATED 1.1.2014 IN ST REV. NO.46 OF 2013 PASSED BY THE DIVISION BENCH OF THIS HON'BLE COURT IN OBSERVING FORMULA FOR ARRIVING GROSS PROFIT

EXHIBIT P6 TRUE COPY OF JUDGMENT DATED 6.9.2018 IN OT REV. NO.124 OF 2014 PASSED BY DIVISION BENCH OF THIS HON'BLE COURT, IN SETTING ASIDE ESTIMATION OF TURNOVER MADE BY INTELLIGENCE OFFICER TO IMPOSE PENALTY

EXHIBIT P7 TRUE COPY OF JUDGMENT DATED 20.3.2018 IN WRIT. APPEAL NO.679 OF 2018 PASSED BY THIS HON'BLE COURT, IN HOLDING THAT WHEN AVERAGE GROSS PROFIT TAKEN DEFINITELY IT LEADS TO ESTIMATION FOR IMPOSING PENALTY, NOT PERMISSIBLE.

EXHIBIT P8 TRUE COPY OF INTERIM ORDER DATED 23.11.2020 PASSED BY THIS HON'BLE COURT IN WP(C) NO.25665 OF 2020 ON SIMILAR SET OF FACT, NOW PENDING BEFORE THIS HON'BLE COURT.