Kerala High Court
Al-Mahamood vs Commercial Tax Officer on 22 November, 2023
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
WEDNESDAY, THE 22ND DAY OF NOVEMBER 2023 / 1ST AGRAHAYANA, 1945
WP(C) NO. 27489 OF 2023
PETITIONERS:
AL-MAHAMOOD,
PROP: MAHAMOOD SUBAIR,
I. S. PRESS ROAD, ERNAKULAM, KOCHI-682018
(NOW IN PCA BUILDING, 66/1050 (B), 2ND FLOOR,
NEAR DARUL- ULOOM SCHOOL, VEEKSHANAM ROAD,
NORTH ERNAKULAM, KOCHI, PIN - 682018.
BY ADVS.
SRI. K. N. SREEKUMARAN
SRI. P. J. ANILKUMAR
SRI. N. SANTHOSHKUMAR
RESPONDENTS:
1 COMMERCIAL TAX OFFICER,
COMMERCIAL TAXES DEPARTMENT,
(NOW STATE GST DEPARTMENT), 1ST CIRCLE,
CLAS TOWER, OLD RAILWAY STATION ROAD,
ERNAKULAM, KOCHI, PIN - 682018.
2 DEPUTY COMMISSIONER,
AUDIT DIVISION-3, STATE GOODS & SERVICE TAX DEPARTMENT,
GROUND FLOOR, CLAS TOWER, OLD RAILWAY STATION ROAD,
KACHERIPADY, ERNAKULAM, KOCHI, PIN - 682018.
3 ADMINISTRATOR,
UNION TERRITORY OF LAKSHADWEEP,
WILLINGDON ISLAND, KOCHI, PIN - 682003.
BY ADV.
SRI. SAJITH KUMAR V. - SC - LAKSHADWEEP ADMINISTRATOR
SRI. JASMINE M. M. - GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
22.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 27489 OF 2023
2
DINESH KUMAR SINGH, J.
--------------------------
W.P.(C) No.27489 of 2023
-------------------------
Dated this the 22nd day of November, 2023
JUDGMENT
1. The petitioner has approached this Court in this writ petition
for a direction to the 3rd respondent to furnish the shipping
document or best evidence in respect of the supplies made by the
petitioner to the Union Territory of Lakshadweep Administration for
the purpose of availing concessional rate of tax @ 4% under proviso
to Section 6(1) of the KVAT Act. In the alternative, the petitioner
had prayed for a direction to the 3 rd respondent to pay the amount
of tax concession availed by the 3rd respondent along with interest
by virtue of declaration in Form 41 and the provisions in Section 6
(1) read with 12C of the KVAT Act and the Rules made thereunder.
2. According to the petitioner, the petitioner had sold various
items to the Union Territory of Lakshadweep Administration and
therefore, he is entitled to reduction in levying of tax @ 4% under
KVAT Act on condition of filing necessary declaration from the
Administrator, Union Territory of Lakshadweep as per Section 6(1)
read with Rule 12C (1) of the KVAT Rules.
WP(C) NO. 27489 OF 2023
3. The petitioner's claim for concession of 4% availed on the
strength of Form 42 was rejected for want of copies of the shipping
documents. The period involved is from 2005 to 2011. The
assessment orders came to be passed for the financial years 2005-
06, 2006-07, 2007-08, 2008-09 and 2009-10 in Exhibits P-3 to P-7. For
the financial year 2010-11, the assessment order was passed on
16.10.2012 in Exhibit P-8.
4. Aggrieved by Exhibits P-3 to P-8 assessment orders, the
petitioner filed W.P.(C) No. 8022 of 2011 before this Court. This
Court vide the Judgment and order dated 04.11.2015 quashed the
assessment orders with a direction to accept the claim of the
petitioner for concessional rate of tax on the basis of the
declaration in Form 42. In compliance to the Judgment and order
dated 04.11.2015 passed in W.P.(C) No.8022 of 2011, the
assessment orders for the assessment years 2005-06 to 2010-11
were revised in respect of the sales effected by the petitioner to the
Union Territory of Lakshadweep Administration and concessional
tax @ 4% was levied. According to the petitioner, petitioner was
entitled to refund in view of the revised assessment orders and the
petitioner had paid excess tax for all the years.
WP(C) NO. 27489 OF 2023
5. The State, however, filed the W.A. No. 379 of 2016 against the
order of the learned Single Judge dated 04.11.2015 passed in W.P.
(C) No. 8022 of 2011. The learned Division Bench vide the Judgment
and order dated 26.08.2021 allowed the writ appeal filed by the
State with the following observations;
"6.4 Hence, for the said purpose we grant liberty to
dealers, in these cases, to represent to the
Administrator, Union Territory of Lakshadweep or the
buyer under respective invoices, by enclosing a copy of
this judgment to furnish copies of shipping bills or
similar documents duly attested by port authorities
evidencing shipment of goods covered by respective
invoices, within four weeks from the date of receipt of
a copy of the judgment. Upon such request being
received, the Administrator, Union Territory of
Lakshadweep, the Administrator/buyer as the case may
be, shall verify and furnish the best of evidence
available in this behalf of shipment of goods to
Lakshadweep within eight weeks from the date of
receipt of the request from the writ petitioners/dealers.
Thereafter, the dealer is given liberty to place the said
proof before the Assessing Officer. The Assessing
Officer shall reassess and pass orders by adverting to
the documents now produced by the dealer in
accordance with law. In cases where the dealer has
already furnished declaration in Form No.42 and
utilisation certificate by authority from Union Territory,
the same could be considered in terms of Rule 12C
and reassessment orders are made."
WP(C) NO. 27489 OF 2023
6. Thus the petitioner was granted liberty to represent the
Administrator, Union Territory of Lakshadweep or the buyer under
respective invoices, by enclosing a copy of the Judgment passed by
the learned Division Bench to furnish copies of shipping bills or
similar documents duly attested by port authorities evidencing
shipment of goods covered by respective invoices, within four
weeks from the date of receipt of a copy of the Judgment. The
Administrator was directed to verify and furnish the best evidence
available in this behalf on shipment of goods to the Union Territory
of Lakshadweep within eight weeks from the date of receipt of the
request from the writ petitioner/dealer. Thereafter, the dealer was
given liberty to produce the proof before the Assessing Officer and
thereafter, the Assessing Officer would reassess and pass orders by
adverting to the documents produced by the dealer in accordance
with the law.
7. In pursuance to the liberty granted by the learned Division
Bench, the petitioner had made few requests before the
Administrator, Union Territory of Lakshadweep for providing the bill
of entry or best evidences in respect of the supplies made by the
WP(C) NO. 27489 OF 2023
petitioner to the Union Territory of Lakshadweep Administration.
The petitioner thereafter filed the contempt petition, CCC No. 2468
of 2022 along with CCC No. 2446 of 2022. However, these
contempt petitions came to be dismissed vide the Judgment and
order dated 10.07.2023 with liberty to challenge the communication
dated 25.11.2021 in Exhibit P-20 issued by the 3 rd respondent in this
regard.
8. Now, the petitioner has filed this writ petition before this
Court. The matter is of 2005-06 to 2010-11. According to the
petitioner he has made supplies and sold goods to the
Administration, Union Territory of Lakshadweep and he has raised
invoices. The petitioner had earlier approached this Court for
almost similar reliefs and the learned Division Bench in writ appeal
granted liberty to the petitioner to approach the Administrator,
Union Territory of Lakshadweep for the required documents or best
evidence. As the documents sought for by the petitioner are for the
period of 2005-06 to 2010-11, the petitioner's request could not be
complied with by the 3rd respondent for which the petitioner had
filed contempt petition and the contempt petition also came to be
dismissed. Now for the very same purpose the petitioner has filed
WP(C) NO. 27489 OF 2023
this writ petition.
9. In the counter affidavit filed on behalf of the 3 rd respondent,
the Administrator, Union Territory of Lakshadweep it is stated that
the petitioner is seeking shipping documents from the
Administrator after lapse of several years. the petitioner never
claimed or insisted for shipping documents at the time of
delivery/supply of goods. The purchases were made during 2005 to
2010 and once the petitioner's claim for concessional rate of tax @
4% was rejected, the petitioner started litigation. Considering the
fact that at the earlier round of litigation before this Court, this
Court has not granted similar reliefs as sought for in this writ
petition, I am of the considered view that the present writ petition
is not maintainable. The Union Territory of Lakshadweep
Administration may be correct in saying that for supplies made
during 2005 to 2010, at this point of time documents may not be
available. In view thereof, I find no ground to issue direction as
sought in this writ petition. Therefore, the present writ petition is
hereby dismissed, however, devoid of any cost.
Sd/-
DINESH KUMAR SINGH
JUDGE
Svn
WP(C) NO. 27489 OF 2023
APPENDIX OF WP(C) 27489/2023
PETITIONER'S EXHIBITS
EXHIBIT P1 TRUE COPIES OF SAMPLE DECLARATIONS IN FORM 42
FILED BY THE PETITIONER BEFORE 1ST RESPONDENT
EXHIBIT P2 TRUE COPY OF THE LETTER NO.F 2/43/2005-AB2
DATED 3.11.2010 ISSUED BY THE 3RD RESPONDENT
TO THE COMMISSIONER
EXHIBIT P3 TRUE COPY OF THE ASSESSMENT ORDER UNDER TIN
NO.32071574924 FOR THE YEAR 2005-06 DATED
2.11.2010 ISSUED BY THE 1ST RESPONDENT
EXHIBIT P4 TRUE COPY OF THE ASSESSMENT ORDER UNDER TIN
NO.32071574924 FOR THE YEAR 2006-07 DATED
2.11.2010 ISSUED BY THE 1ST RESPONDENT
EXHIBIT P5 TRUE COPY OF THE ASSESSMENT ORDER UNDER TIN
NO.32071574924 FOR THE YEAR 2007-08 DATED
2.11.2010 ISSUED BY THE 1ST RESPONDENT
EXHIBIT P6 TRUE COPY OF THE ASSESSMENT ORDER UNDER TIN
NO.32071574924 FOR THE YEAR 2008-09 DATED
2.11.2010 ISSUED BY THE 1ST RESPONDENT
EXHIBIT P7 TRUE COPY OF THE ASSESSMENT ORDER UNDER TIN
NO.32071574924 FOR THE YEAR 2009-10 DATED
2.11.2010 ISSUED BY THE 1ST RESPONDENT
EXHIBIT P8 TRUE COPY OF THE ASSESSMENT ORDER UNDER TIN
NO.32071574924 FOR 2010-11 DATED 16.10.2012
ISSUED BY THE 1ST RESPONDENT
EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 4.11.2015 IN
WPC 8022/2011 OF THIS HON'BLE COURT
EXHIBIT P10 TRUE COPY OF THE REVISED ASSESSMENT ORDER
UNDER TIN NO.32071574924 FOR 2005-06 DATED
27.5.2016 ISSUED BY THE 1ST RESPONDENT
EXHIBIT P11 TRUE COPY OF THE REVISED ASSESSMENT ORDER
UNDER TIN NO.32071574924 FOR 2006-07 DATED
27.5.2016 ISSUED BY THE 1ST RESPONDENT
WP(C) NO. 27489 OF 2023
EXHIBIT P12 TRUE COPY OF THE REVISED ASSESSMENT ORDER
UNDER TIN NO.32071574924 FOR 2007-08 DATED
27.5.2016 ISSUED BY THE 1ST RESPONDENT
EXHIBIT P13 TRUE COPY OF THE REVISED ASSESSMENT ORDER
UNDER TIN NO.32071574924 FOR 2008-09 DATED
27.5.2016 ISSUED BY THE 1ST RESPONDENT
EXHIBIT P14 TRUE COPY OF THE REVISED ASSESSMENT ORDER
UNDER TIN NO.32071574924 FOR 2009-10 DATED
27.5.2016 ISSUED BY THE 1ST RESPONDENT
EXHIBIT P15 TRUE COPY OF THE REVISED ASSESSMENT ORDER
UNDER TIN NO.32071574924 FOR 2010-11 DATED
27.5.2016 ISSUED BY THE 1ST RESPONDENT
EXHIBIT P16 TRUE COPY OF THE JUDGMENT IN WA 379/2016 DATED
26.8.2021 OF THIS HON'BLE COURT
EXHIBIT P17 TRUE COPY OF THE LETTER DATED 15.9.2021 ISSUED
BY THE 3RD RESPONDENT
EXHIBIT P18 TRUE COPY OF THE LETTER DATED 4.3.2022 FILED
BEFORE THE 3RD RESPONDENT
EXHIBIT P19 TRUE COPY OF THE COMMON JUDGMENT DATED
10.7.2023 IN CCC NO.2468/2022 & 2446/2022 OF
THIS HON'BLE COURT
EXHIBIT P20 TRUE COPY OF THE COMMUNICATION/LETTER NO.F
NO.2/13/2017-AB2/290 DATED 25.11.2021 ISSUED
BY THE 3RD RESPONDENT TO SRI. N.K. PRABHAKAR
NAICK
EXHIBIT P21 TRUE COPY OF THE NOTICE NO.32071574924/2005-06
TO 2010-11 DATED 10.5.2023 ISSUED BY THE 2ND
RESPONDENT
EXHIBIT P22 TRUE COPY OF THE LETTER DATED 21.7.2023 FILED
BEFORE THE 3RD RESPONDENT ALONG WITH
ACKNOWLEDGEMENT
