M/S.Photo Perfect Digital Offset ... vs Intelligence Officer (Ib)
2022 Latest Caselaw 5820 Ker

W.P.(C)No.25891/2016                      1

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
             THE HONOURABLE MR. JUSTICE GOPINATH P.
   TUESDAY, THE 31ST DAY OF MAY 2022 / 10TH JYAISHTA, 1944
                       WP(C) NO. 25891 OF 2016
PETITIONER:

            M/S.PHOTO PERFECT DIGITAL OFFSET PRESS
            33/2844A, POTTAPARAMBIL BUILDING,CHAKKARAPARAMBU
            THAMMANAM P.O.,COCHIN, REPRESENTED BY ITS PARTER
            BIJU PAUL.

            BY ADVS.
            SRI.A.KUMAR
            SRI.P.J.ANILKUMAR
            SMTG.MINI1748
            SRI.P.S.SREE PRASAD



RESPONDENT:

     1      INTELLIGENCE OFFICER (IB)
            OFFICE OF THE DY. COMMISSIONER (INT)DEPARTMENT OF
            COMMERCIAL TAXES,ERNAKULAM - 682 015.

     2      COMMERCIAL TAX OFFICER
            2ND CIRCLE,KALAMASSERY 683 104

            BY SMT. JASMIN M.M.- GOVERNMENT PLEADER




THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
31.05.2022,     THE    COURT   ON   THE       SAME   DAY   DELIVERED   THE
FOLLOWING:
 W.P.(C)No.25891/2016                      2

                               JUDGMENT

The petitioner has approached this Court challenging Ext.P12 order.

Through Ext.P12 order, the Commercial Tax Officer, 2 nd Circle,

Kalamassery had completed assessment proceedings in respect of the

petitioner for the assessment year 2014-2015 and certain demand was also

raised on the petitioner.

2. The petitioner was a registered dealer under the KVAT and

CST engaged in the business of conducting a Digital Offset Press. It is

submitted that the petitioner used to prepare what is commonly known in

the market as a "Photo Book", after obtaining photographs in digital form

from customers. It is submitted that the rate of tax in respect of "Photo

Book" under the KVAT was 5% (under Entry 100(5) of III Schedule of the

KVAT Act), while a completely distinct product namely "Photo Album" was

taxed at the rates applicable under Entry 77(6) of a notification, namely,

SRO No.82/06 at the rate of 14.5%. It is submitted that when the penalty

proceedings were initiated against the petitioner for 2014-2015, the

petitioner filed an application for compounding in which he admitted that

the product in question was a "Photo Album" and Ext.P7 compounding

order was passed treating the product of the petitioner to be "Photo

Album" whereas in reality, the product was a "Photo Book". It is submitted

that after Ext.P7 compounding order was passed, a clarification was issued

by the Department (Ext.P5 dated 6.1.2016) which is after the date of Ext.P7

compounding order. According to the learned counsel, Ext.P5 clarifies that

the product of the petitioner cannot be taxed at the higher rate applicable

to "Photo Album". He submits that in respect of the very same assessment

year, the assessment was completed against the petitioner by Ext.P12 (the

impugned order) treating the product of the petitioner to be "Photo

Album" instead of "Photo Book" entirely relying on Ext.P7 compounding

order and without taking into consideration Ext.P5 clarification.

3. The learned Government Pleader has taken me through

Ext.P12 order. It is submitted that there are several issues which has been

considered in Ext.P12 and the question as to whether the product of the

petitioner was "Photo Book" or "Photo Album" was only one among them.

It is submitted that considering the above, it was only appropriate for the

petitioner to have approached the Appellate Authority challenging Ext.P12

instead of filing a writ petition before this Court. It is submitted there is

absolutely no mistake or error in Ext.P12 and the finding in Ext.P12 that

the product of the petitioner is "Photo Album" and not "Photo Book" is a

factual determination and the authority was well within its rights to take

into consideration the petitioner's own showing in his application for

compounding that the product in question was "Photo Albums" and was

not a "Photo Book". It is submitted that the petitioner cannot be granted

the relief sought in a writ petition under Article 226 of the Constitution of

India, when he has an effective alternate remedy.

4. Having heard the learned counsel for the petitioner and the

learned Government Pleader, I am of the opinion that this writ petition can

be disposed of directing reconsideration of one of the issues decided in

Ext.P12 namely the question as to whether the product of the petitioner

was "Photo Album" or "Photo Book". I am inclined to direct

reconsideration because on a reading of Ext.P12, it is clear that the

authority while issuing Ext.P12 and determining the question as to whether

the product of the petitioner was of a "Photo Book" or "Photo Album" had

relied completely on Ext.P7 compounding order and had refused to look at

Ext.P5 clarification which, according to the petitioner, would have tilted

the matter completely in his favour. Therefore, I set aside Ext.P12 order

and remand the matter to the competent authority who will reconsider the

issue as to whether the product of the petitioner was "Photo Album" or

"Photo Book" also taking into consideration Ext.P5 Circular and without

relying solely on Ext.P7 compounding order in which the product of the

petitioner was determined to be a "Photo Album". I make it clear that I

have remanded the matter to the competent authority only for

consideration of the above point and there need not be a reconsideration of

any other issue which has been decided by Ext.P12. The competent

authority shall reconsider the issue as above and issue a fresh composite

order in respect of all issues (without reconsidering any other issue),

within a period of two months from the date of receipt of a certified copy of

this judgment. The petitioner shall also be afforded an opportunity of

being heard, before the proceedings are finailized.

The writ petition is disposed of as above.

Sd/-

GOPINATH P.

JUDGE acd

APPENDIX OF WP(C) 25891/2016

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF INVOICE DATED 4/2/2015

EXHIBIT P1(A) TRUE COPY OF INVOICE DATED 2/3/2015

EXHIBIT P2 TRUE COPY OF MONTHLY RETURNS FOR THE MONTH OF FEBRUARY DATED 13/3/2015

EXHIBIT P2(A) TRUE COPY OF MONTHLY RETURNS FOR THE MONTH OF MARCH DATED 16/4/2015

EXHIBIT P3 TRUE COPY OF ANNUAL RETURN FOR ASSESSMENT YEAR 2014-2015 DATED 25/5/2015

EXHIBIT P4 TRUE COPY OF SUMMARY STATEMENT INDICATING THE MONTHLY SUMMARY OF SALE BOOKLETS FOR THE PERIOD 1/4/2014-

                          31/03/2015

EXHIBIT P5                TRUE COPY OF THE ORDER OF CLARIFICATION
                          DATED 6/1/2015

EXHIBIT P6                TRUE COPY OF THE APPLICATION FOR
                          COMPOUNDING DATED 30/6/2015

EXHIBIT P7                TRUE COPY OF COMPOUNDING ORDER DATED
                          6/7/2015

EXHIBIT P8                TRUE COPY OF THE APPLICATION FOR
                          RECTIFICATION DATED 13/6/2015

EXHIBIT P9                TRUE COPY OF THE ORDER DATED 27/8/2016
                          REJECTING THE RECTIFICATION APPLICATION

EXHIBIT P10               TRUE COPY OF THE NOTICE DATED 26/12/2015

EXHIBIT P11               TRUE COPY OF THE REPLY DATED 28/1/2016

EXHIBIT P12               TRUE COPY OF THE ASSESSMENT DATED
                          18/5/2016