Kerala High Court
Thomas Mathew vs The State Tax Officer (Ib) - 1 on 19 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
FRIDAY, THE 19TH DAY OF NOVEMBER 2021 / 28TH KARTHIKA, 1943
WP(C) NO. 20447 OF 2021
PETITIONER:
THOMAS MATHEW
PROPRIETOR, M/S. J.M.J.MODERN RICE MILL,
VIII/188A, ARPOOKARA WEST,
KOTTAYAM-686 008.
BY ADVS.
SRI.HARISANKAR V. MENON
SMT.MEERA V.MENON
RESPONDENTS:
1 THE STATE TAX OFFICER (IB) - 1
SGST DEPARTMENT, TAX TOWERS,
5TH FLOOR, KARAMANA,
THIRUVANANTHAPURAM-695 002.
2 THE DEPUTY COMMISSIONER (IB)
SGST DEPARTMENT, TAX TOWERS,
5TH FLOOR, KILLIPPALAM, KARAMANA,
THIRUVANANTHAPURAM-695 002.
3 THE COMMISSIONER OF STATE TAX
SGST DEPARTMENT, TAX TOWERS,
KILLIPALAM, KARAMANA,
THIRUVANANTHAPURAM-695 002.
BY DR.THUSHARA JAMES, SR. GOVT. PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 03.11.2021, ALONG WITH WP(C)NOS.20453/2021,
20455/2021 & 20475/2021, THE COURT ON 19.11.2021 DELIVERED
THE FOLLOWING:
W.P.(C) No.20447/21 & Conn. Cases -:2:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
FRIDAY, THE 19TH DAY OF NOVEMBER 2021 / 28TH KARTHIKA, 1943
WP(C) NO. 20453 OF 2021
PETITIONER:
LILLYKUTTY MATHEW
PROPRIETRIX, M/S.ST.MARY'S PADDY PROCESSING UNIT,
ARPOOKARA WEST, KOTTAYAM-686 008.
BY ADVS.
SRI.HARISANKAR V. MENON
SMT.MEERA V.MENON
RESPONDENTS:
1 THE STATE TAX OFFICER (IB) - I
SGST DEPARTMENT, TAX TOWERS,
5TH FLOOR, KARAMANA,
THIRUVANANTHAPURAM-695 002.
2 THE DEPUTY COMMISSIONER (IB)
SGST DEPARTMENT, TAX TOWERS,
5TH FLOOR, KILLIPPALAM, KARAMANA,
THIRUVANANTHAPURAM-695 002.
3 THE COMMISSIONER OF STATE TAX
SGST DEPARTMENT, TAX TOWERS,
KILLIPALAM, KARAMANA,
THIRUVANANTHAPURAM-695 002.
BY DR.THUSHARA JAMES, SR. GOVT. PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 03.11.2021, ALONG WITH WP(C).20447/2021 AND
CONNECTED CASES, THE COURT ON 19.11.2021 DELIVERED THE
FOLLOWING:
W.P.(C) No.20447/21 & Conn. Cases -:3:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
FRIDAY, THE 19TH DAY OF NOVEMBER 2021 / 28TH KARTHIKA, 1943
WP(C) NO. 20455 OF 2021
PETITIONER:
M/S.K.E. AGRO PRODUCTS (P) LTD.,
VIII/188B ARPOOKKARA WEST,
KOTTAYAM, 686 008,
REPRESENTED BY ITS MANAGING DIRECTOR,
THOMAS MATHEW.
BY ADVS.
SRI.HARISANKAR V. MENON
SMT.MEERA V.MENON
RESPONDENTS:
1 THE STATE TAX OFFICER (IB)-1,
SGST DEPARTMENT, TAX TOWERS,
5TH FLOOR, KARAMANA,
THIRUVANANTHAPURAM 695 002.
2 THE DEPUTY COMMISSIONER (IB),
SGST DEPARTMENT, TAX TOWERS,
5TH FLOOR, KILLIPPALAM, KARAMANA,
THIRUVANANTHAPURAM 695 002.
3 THE COMMISSIONER OF STATE TAX,
SGST DEPARTMENT, TAX TOWERS,
5TH FLOOR, KILLIPPALAM, KARAMANA,
THIRUVANANTHAPURAM 695 002.
BY DR.THUSHARA JAMES, SR. GOVT. PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 03.11.2021, ALONG WITH WP(C).20447/2021 AND
CONNECTED CASES, THE COURT ON 19.11.2021 DELIVERED THE
FOLLOWING:
W.P.(C) No.20447/21 & Conn. Cases -:4:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
FRIDAY, THE 19TH DAY OF NOVEMBER 2021 / 28TH KARTHIKA, 1943
WP(C) NO. 20475 OF 2021
PETITIONER:
M/S.GEE YEM AGRO MILLS
IX/134, ELAMBAKKAPPILLY P.O.,
KOOVAPADY, ERNAKULAM 683 544,
REP.BY ITS MANAGING PARTNER, THOMAS MATHEW
BY ADVS.
SRI.HARISANKAR V. MENON
SMT.MEERA V.MENON
RESPONDENT/S:
1 THE STATE TAX OFFICER (IB)-I
SGST DEPARTMENT, TAX TOWERS,
5TH FLOOR, KARAMANA,
THIRUVANANTHAPURAM 695 002
2 THE DEPUTY COMMISSIONER (IB)
SGST DEPARTMENT, TAX TOWERS,
5TH FLOOR, KILLIPPALAM, KARAMANA,
THIRUVANANTHAPURAM 695 002
3 THE COMMISSIONER OF STATE TAX
SGST DEPARTMENT, TAX TOWERS,
KILLIPPALAM, KARAMANA,
THIRUVANANTHAPURAM 695 002
BY DR.THUSHARA JAMES, SR. GOVT. PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 03.11.2021, ALONG WITH WP(C).20447/2021 AND
CONNECTED CASES, THE COURT ON 19.11.2021 DELIVERED THE
FOLLOWING:
W.P.(C) No.20447/21 & Conn. Cases -:5:-
"C.R."
BECHU KURIAN THOMAS, J.
----------------------------------------
W.P.(C) Nos.20447, 20453
20455 & 20475 of 2021
---------------------------------------
Dated this the 19th day of November, 2021
JUDGMENT
Petitioners' request for transfer of files of enquiry to a place of
petitioners' choice and for grant of copy of statements recorded by
respondents in the process of investigation into non-collection of tax for
outward supply of rice, were not considered by the Proper Officer under
the Central Goods and Services Tax Act, 2017 (for short 'the Act').
2. These four writ petitions are filed by respective tax payers
against whom summons have been issued relating to an investigation on
supply of goods under the Act. When the petitioners were served with the
summons, to give evidence in the enquiry, applications were filed seeking
transfer of files to an officer in a jurisdiction near to the place of business
of the petitioners, alleging the prevalent pandemic as a reason. A further
request was made to furnish copy of statements already given by other
persons who were summoned as part of the enquiry.
3. In W.P.(C) No.20475 of 2021, the only request made to the Tax
Officer was for transfer of the files while in the remaining three cases, the
requests included the grant of copy of statements already recorded.
4. By the impugned proceedings, the Proper Officer refused to
consider the requests by a curt reply as follows:- "Now the case is being
(sic) under investigation stage. At this juncture, the request for transferring
the said file to the IB Unit, Kottayam and for issuing copy of statements
already obtained from Sri.Benny Joseph, Manager of the firm M/s. St.
Marrys Paddy Processing and Sri.Melvin T.Mathew, S/o. Sri.Thomas
Mathew, Director of the firm M/s.K.E.Agro Products Pvt. Ltd. cannot be
considered."
5. Petitioners urge that the transfer of files to a place of petitioners'
choice and furnishing copy of statements recorded by the officer, to the
person, against whom the enquiry is being conducted is part of the
constitutional right of every individual and hence petitioners are entitled to
get copies of such documents.
6. A counter affidavit was filed by the second respondent in W.P.(C)
No.20453 of 2021 stating that the information gathered during the enquiry
is very crucial and sensitive in nature and that, issuance of copies or
sharing of extracts of the statements at the present stage would
prejudicially affect the investigation. It was further averred that, transfer of
files to a place of petitioners' choice would defeat the purpose of
investigation as those were all matters of administrative arrangement,
which cannot be dictated by a person under the cloud of suspicion and
investigation.
7. I have heard Adv.Harisankar V.Menon, learned counsel for the
petitioners and Dr.Thushara James, learned Senior Government Pleader
for the respondents.
8. During the course of arguments, learned counsel for the
petitioners submitted that they are not pressing the relief relating to
transfer of files, especially since, the waning of restrictions of Covid-19
pandemic enabled ease in commuting to Thiruvananthapuram. In view of
the above submission, the claim for transfer of files is rendered
infructuous. Even otherwise, petitioners cannot claim any right to have the
investigation transferred to the jurisdiction of their choice. Therefore in
W.P.(C) No.20475 of 2021, nothing further remains to be considered.
9. Section 67 of the CGST/KGST Act deals with inspection, search,
seizure and arrest. Section 67(5) thereof reads as follows:
"The person from whose custody any documents are seized
under sub-section (2) shall be entitled to make copies thereof
or take extracts therefrom in the presence of an authorised
officer at such place and time as such officer may indicate in
this behalf except where making such copies or taking such
extracts may, in the opinion of the proper officer, prejudicially
affect the investigation."
10. Thus the person from whose custody any documents are seized
shall be entitled to make copies which the officer may permit, except in
cases where, in the opinion of the Proper Officer taking such copies will
prejudicially affect the investigation.
11. Though in the counter affidavit it is pleaded by the first
respondent that issuing copies at this stage will prejudicially affect the
investigation, such a reason is absent in the impugned order. A perusal of
Ext.P10 reveals that the only reason stated for denying the request for
issuance of a copy of the statements recorded is that "it cannot be
considered". The Proper Officer did not have a case in Ext.P10 that giving
copy of statements would cause prejudice to the investigation. He refused
to consider the request.
12. It is the settled proposition of law that an affidavit cannot
enlarge or supplement reasons which the order did not contain at the time
it was issued. Reasons recorded in the pleadings of an affidavit cannot
contribute to the validity of an order when impugned. The reason, must of
necessity, be reflected in the order impugned. Reference can be made to
Commissioner of Police, Bombay v. Gordhandas Phanji (AIR 1952
SC 16) and Mohinder Singh Gill v. Chief Election Commissioner
[(1978) 1 SCC 405].
13. While refusing to consider the request of the petitioners, the
Proper Officer failed to state any reason. The officer had not mentioned
that giving copy of the statements would cause prejudice to the
investigation. The request of the petitioners for issuing copies of
statements already recorded by the investigating officer, as mentioned
earlier was refused to be considered. There is a marked distinction
between refusing to consider and rejecting an application for reasons.
The Proper Officer ought to have considered the request and either
granted copies of the statements or rejected such requests for reasons to
be recorded, rather than avoiding consideration of such request.
14. The distinction sought to be canvassed on the basis of a
document seized under section 67(5) of the Act and a statement given as
evidence pursuant to a summons under section 70 of the Act, though
impressive at first blush, may not be of any avail to the petitioners on a
deeper consideration. Section 70 of the Act relates to the power to
summon persons to give evidence. By the legislative reference in section
70 of the Act, the power to summon persons or produce documents can
be treated as akin to the power in the Code of Civil Procedure, 1908 (for
short 'the CPC'). It is only the power that is referable to the CPC. This
will be clear from a reading of section 70 of the Act, which is as follows:
"70. Power to summon persons to give evidence and produce
documents.
(1) The proper officer under this Act shall have power to
summon any person whose attendance he considers necessary
either to give evidence or to produce a document or any other
thing in any inquiry in the same manner, as provided in the case of
a Civil Court under the provisions of the Code of Civil Procedure,
1908 (Central Act 5 of 1908).
(2) Every such inquiry referred to in sub-section (1) shall be
deemed to be a "judicial proceedings" within the meaning of
section 193 and section 228 of the Indian Penal Code, 1860
(Central Act 45 of 1860)."
15. Order XVI of the CPC deals with power to summon witnesses
to give evidence or for production of documents. By conferring the power
of summoning a witnesses to give evidence or to produce a document as
provided in Order XVI of the CPC, the nature or character of the
investigation or inquiry being conducted under Chapter XIV of the Act will
not be changed. The power to summon or produce a document is distinct
from the nature of proceedings conducted. Merely because the source of
power to summon witnesses and power to direct production of documents
is referable to CPC, that does not alter the nature of investigation or
inquiry being conducted. It remains to be an investigation or inquiry.
Therefore, the contention raised by the petitioners on the basis of section
70 of the Act is rejected.
16. In view of the above deliberations, this Court is of the view that
Ext.P10 order is liable to be set aside and the first respondent is directed
to reconsider the application of the petitioners for giving a copy of the
statements already obtained in the course of investigation and pass fresh
orders.
17. In this context, it is relevant to observe that a learned single
Judge of this Court had in W.P.(C) No.14144 of 2020 held that, the person
against whom an inquiry is conducted will be entitled to seek copies of the
documents seized, when they are confronted with any notice or other
proceedings, wherein, reliance is placed on such seized documents. The
aforesaid judgment was affirmed by a Division Bench of this Court in W.A.
No.1185 of 2020. In the instant case, such a situation has also not arisen
as no notice have been issued relying upon any seized document.
In view of the above deliberations, W.P.(C) No.20447 of 2021, W.P.
(C) No.20453 of 2021 and W.P.(C) No.20455 of 2021 are allowed in part.
Ext.P10 in these three writ petitions are set aside and the first respondent
is directed to pass fresh orders on the request of the petitioners for grant
of copies of statements recorded from the witnesses. The relief of
transfer of files claimed in those writ petitions are dismissed as not
pressed. W.P.(C) No.20475 of 2021 is closed, since the only relief claimed
in the writ petition is for transfer of files.
Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
APPENDIX OF WP(C) 20447/2021
PETITIONER'S/S' EXHIBITS
Exhibit P1 COPY OF SUMMONS ISSUED BY THE IST
RESPONDENT TO THE PETITIONER'S SON
MELVIN T. MATHEW DATED 23.7.2021.
Exhibit P2 COPY OF REQUEST FILED BY THE PETITIONER
BEFORE THE 2ND RESPONDENT DATED
5.8.2021.
Exhibit P3 COPY OF SUMMONS ISSUED BY THE IST
RESPONDENT TO THE PETITIONER DATED
9.8.2021.
Exhibit P4 COPY OF LETTER FILED BY THE PETITIONER
BEFORE THE 2ND RESPONDENT DATED
12.8.2021.
Exhibit P5 COPY OF SUMMONS ISSUED BY THE IST
RESPONDENT TO THE PETITIONER DATED
17.8.2021.
Exhibit P6 COPY OF LETTER ISSUED BY THE IST
RESPONDENT TO THE PETITIONER DATED
24.8.2021.
Exhibit P7 COPY OF LETTER SUBMITTED BY THE
PETITIONER TO THE 3RD RESPONDENT DATED
26.8.2021.
Exhibit P8 COPY OF SUMMONS ISSUED BY THE IST
RESPONDENT DATED 6.9.2021.
Exhibit P9 COPY OF LETTER SUBMITTED BY THE
PETITIONER BEFORE THE IST RESPONDENT
DATED 10.9.2021.
Exhibit P10 COPY OF LETTER ISSUED BY THE IST
RESPONDENT DATED 7.9.2021.
Exhibit P11 COPY OF CERTIFICATE WITH DISCHARGE
SUMMARY ISSUED BY THE CARITAS HOSPITAL,
THELLAKOM P.O., KOTTAYAM DATED
18.9.2021.
APPENDIX OF WP(C) 20453/2021
PETITIONER'S/S' EXHIBITS
Exhibit P1 COPY OF SUMMONS ISSUED BY THE IST
RESPONDENT TO THE PETITIONER DATED
7.7.2021.
Exhibit P2 COPY OF REQUEST FILED BY THE PETITIONER
BEFORE THE 2ND RESPONDENT DATED
5.8.2021.
Exhibit P3 COPY OF SUMMONS ISSUED BY THE IST
RESPONDENT TO THE PETITIONER DATED
9.8.2021.
Exhibit P4 COPY OF LETTER FILED BY THE PETITIONER
BEFORE THE 2ND RESPONDENT DATED
12.8.2021.
Exhibit P5 COPY OF SUMMONS ISSUED BY THE IST
RESPONDENT TO THE PETITIONER DATED
17.8.2021.
Exhibit P6 COPY OF LETTER ISSUED BY THE IST
RESPONDENT TO THE PETITIONER DATED
24.8.2021.
Exhibit P7 COPY OF LETTER SUBMITTED BY THE
PETITIONER TO THE 3RD RESPONDENT DATED
26.8.2021.
Exhibit P8 COPY OF SUMMONS ISSUED BY THE IST
RESPONDENT DATED 6.9.2021.
Exhibit P9 COPY OF LETTER SUBMITTED BY THE
PETITIONER BEFORE THE IST RESPONDENT
DATED 10.9.2021.
Exhibit P10 COPY OF LETTER ISSUED BY THE IST
RESPONDENT DATED 7.9.2021.
APPENDIX OF WP(C) 20455/2021
PETITIONER'S/S' EXHIBITS
Exhibit P1 COPY OF SUMMONS ISSUED BY THE IST
RESPONDENT TO MELVIN T. MATHEW. DTD.
23.07.2021.
Exhibit P2 COPY OF REQUEST FILED BY THE PETITIONER
BEFORE THE 2ND RESPONDENT DTD.
05.08.2021.
Exhibit P3 COPY OF SUMMONS ISSUED BY THE IST
RESPONDENT TO THE PETITIONER DTD.
09.08.2021.
Exhibit P4 COPY OF LETTER FILED BY THE PETITIONER
BEFORE THE 2ND RESPONDENT DTD.
12.08.2021.
Exhibit P5 COPY OF THE SUMMONS ISSUED BY THE IST
RESPONDENT TO THE PETITIONER DTD.
17.8.2021.
Exhibit P6 COPY OF LETTER ISSUED BY THE IST
RESPONDENT TO THE PETITIONER DTD.
24.8.2021.
Exhibit P7 COPY OF LETTER SUBMITTED BY THE
PETITIONER TO THE 3RD RESPONDENT DATED
26.08.2021,
Exhibit P8 COPY OF SUMMONS ISSUED BY THE IST
RESPONDENT DATED 06.09.2021.
Exhibit P9 COPY OF LETTER SUBMITTED BY THE
PETITIONER BEFORE THE IST RESPONDENT
DATED 10.09.2021.
Exhibit P10 COPY OF LETTER ISSUED BY THE IST
RESPONDENT DTD. 07.09.2021.
Exhibit P11 COPY OF CERTIFICATE WITH DISCHARGE
SUMMARY ISSUED BY THE CARITAS HOSPITAL
THELLAKOM P.O., KOTTAYAM 18.09.2021.
APPENDIX OF WP(C) 20475/2021
PETITIONER'S/S' EXHIBITS
Exhibit P1 COPY OF SUMMONS ISSUED BY THE 1ST
RESPONDENT TO THE PETITIONER
Exhibit P2 COPY OF REQUEST FILED BY THE PETITIONER
BEFORE THE 2ND RESPONDENT
Exhibit P3 COPY OF SUMMONS ISSUED BY THE 1ST
RESPONDENT TO THE PETITIONER
Exhibit P4 COPY OF LETTER FILED BY THE PETITIONER
BEFORE THE 3RD RESPONDENT
Exhibit P5 COPY OF SUMMONS ISSUED BY THE 1ST
RESPONDENT TO THE PETITIONER
Exhibit P6 COPY OF LETTER ISSUED BY THE 1ST
RESPONDENT TO THE PETITIONER
