Kerala High Court
Carborandum Universal Ltd vs Deputy Commissioner on 23 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
THURSDAY, THE 23RD DAY OF SEPTEMBER 2021 / 1ST ASWINA, 1943
WP(C) NO. 19827 OF 2021
PETITIONER:
CARBORANDUM UNIVERSAL LTD.
P. B. NO.1, KALAMASSERY DEV. PLOT,
KALAMASSERY,
REPRESENTED BY ITS AUTHORISED SIGNATORY
SRI. VISHNUPRASAD.
BY ADVS.
SRI.A.KUMAR
SRI.P.J.ANILKUMAR
SMT.G.MINI(1748)
SRI.P.S.SREE PRASAD
RESPONDENTS:
DEPUTY COMMISSIONER
SPECIAL CIRCLE III,
STATE GOODS AND SERVICES TAX DEPARTMENT,
ERNAKULAM - 682015.
BY DR.THUSHARA JAMES, SR. GOVT. PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 23.09.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No.19827/21 -:2:-
BECHU KURIAN THOMAS, J.
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W.P.(C) No.19827 of 2021
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Dated this the 23rd day of September, 2021
JUDGMENT
Petitioner challenges Ext.P2 assessment order dated
29.03.2021 under section 25(1) of the Kerala Value Added Tax Act,
2003 ('the Act' for short) for the assessment year 2014-15.
2. Petitioner is a Public Limited Company, which has three
manufacturing units in Kerala; one at Kalamassery in Ernakulam,
another at the Special Economic Zone at Kakkanad, Ernakulam and
the third at Koratty in Thrissur. The unit at Thrissur had a different
TIN registration number while the two units at Ernakulam had the
same TIN number.
3. Petitioner claims that it had stock transfer in and stock
transfer out of both raw materials as well as finished products to its
Thrissur unit. According to the petitioner, in Ext.P2 impugned order
under section 25(1) of the Act, the assessing authority regarded the
stock transfer out from the unit at Thrissur to the other units of the
petitioner in Ernakulam itself as local sales solely on the ground that
these different units of petitioner had different TIN numbers.
Petitioner contends that the aforesaid reasoning of the assessing
officer is a basic fallacy which will strip the assessment orders of any
valid reason. It is also pointed out that the delivery notes used to the
stock transfers were all available in the system and the assessing
officer was bound to verify the same. It is also argued that for the
assessment year 2013-14, when a similar reasoning was adopted by
the assessing officer, the appellate authority interfered and held that
the different units of the petitioner are not separate units but one and
the same.
4. The learned counsel for the petitioner Adv.A.Kumar, assisted
by Adv.G.Mini, contends that the impugned order was issued without
considering the delivery notes and even without directing the
assessee to produce the delivery notes. According to the learned
counsel, the failure of respondent to direct the petitioner to produce
the delivery notes has rendered the order of assessment as one
passed in violation of the principles of natural justice thereby
enabling the petitioner to invoke the remedy of Article 226 of the
Constitution of India.
5. Adv.Thushara James, learned Senior Government Pleader
on the other hand contended that the question raised for
consideration are all disputes on facts, requiring an appreciation of
facts and this Court in the exercise of its jurisdiction under Article 226
of the Constitution of India cannot consider or appreciate the same.
6. Having regard to the contentions raised, it is noticed that the
issue as to whether the transactions that have been taxed are of
stock transfer or are local sales and whether the delivery notes were
available for consideration of the assessing officer are all matters to
be raised and considered by an appreciation of the facts involved in
the case. Even if one of the reasonings of the assessing officer is
found to be wrong or incorrect that is not a ground to invoke the
remedy under Article 226 of the Constitution. Such a ground, if
available, is to be agitated by invoking the statutory remedy. Further,
the assessment order deals not only with the issue relating to the
alleged stock transfer between different units of petitioner but have
also considered various other contentious issues. As has been held
repeatedly by this Court as well as the Supreme Court, the remedy
under Article 226 can be invoked only in exceptional circumstances.
7. In the recent judgment of the Supreme Court in Assistant
Commissioner of State Tax and Others v. M/s.Commercial Steel
Ltd. (C.A. No.5121 of 2021) it was held that the existence of an
alternate remedy though not a bar to the maintainability of a writ
petition under Article 226 of the Constitution of India, a writ petition
must be entertained only in exceptional circumstances when there is
a breach of fundamental rights or violation of the principles of natural
justice or if the order is passed in excess of jurisdiction or when there
is a challenge to the constitutionality of the statute.
8. On a consideration of the arguments of the learned counsel
for the petitioner as well as the facts of the case, I am of the opinion
that no such circumstances exist to invoke the extraordinary
jurisdiction of this Court under Article 226 of the Constitution of India.
Hence the writ petition stands dismissed reserving the liberty of
the petitioner to pursue the statutory remedies.
Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
APPENDIX OF WP(C) 19827/2021
PETITIONER'S/S' EXHIBITS
EXHIBIT P1 TRUE COPY OF THE REPLY DATED 07.09.2020.
EXHIBIT P2 TRUE COPY OF THE ASSESSMENT ORDER DATED
29.03.2021 FOR THE ASSESSMENT YEAR 2014-
2015.
EXHIBIT P3 TRUE COPY OF THE RETURNS OF THE TRISSUR
UNIT IS ASSESSMENT YEAR 2014-15 DATED
05.08.2015.
EXHIBIT P4 TRUE COPY OF THE ASSESSMENT ORDER FOR
THE ASSESSMENT YEAR 2014-15 FOR THE
THRISSUR UNIT DATED 19.04.2021.
EXHIBIT P5 TRUE COPY OF THE JUDGMENT IN OTA
NO.1/2021 DATED 15.07.2021.
EXHIBIT P6 TRUE COPY OF A DELIVERY NOTE DATED
23.10.2014.
EXHIBIT P7 TRUE COPY OF THE APPELLATE ORDER DATED
20.01.2021.
