Kerala High Court
Excellent Timbers Imports & Exports ... vs Intelligence Officer (Ib) Ii on 1 July, 2024
Author: P Gopinath
Bench: P Gopinath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
MONDAY, THE 1ST DAY OF JULY 2024 / 10TH ASHADHA, 1946
WP(C) NO. 9843 OF 2015
PETITIONER/S:
EXCELLENT TIMBERS IMPORTS & EXPORTS PVT. LTD.
UNIVEERSITY ROAD, RAMANATTUKARA: BY MANAGING DIRECTOR
V. MAMMU
BY ADVS.
SRI.P.RAGHUNATH
SRI.PREMJIT NAGENDRAN
RESPONDENT/S:
1 INTELLIGENCE OFFICER (IB) II
OFFICE OF THE DEPUTY COMMISSIONER (INT.) ERANCHIPALAM
KOZHIKODE 673005
2 ASSISTANT COMMISSIOER,
KVAT SPECIAL CIRCLE II COMMERCIAL TAXES
KOZHIKODE 673 005
BY ADVS.
SMT. THUSHARA JAMES (SR GP)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
01.07.2024, ALONG WITH WP(C).9853/2015, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P (C) Nos.9843 & 9853/2015 -2-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
MONDAY, THE 1ST DAY OF JULY 2024 / 10TH ASHADHA, 1946
WP(C) NO. 9853 OF 2015
PETITIONER/S:
MS. EXCEL TIMBERS PVT. LIMITED
PETTA, FEROKE, CALICUT, BY MANAGING DIRECTOR V.MAMMU.
BY ADVS.
SRI.P.RAGHUNATH
SRI.PREMJIT NAGENDRAN
RESPONDENT/S:
1 INTELLIGENCE OFFICER (IB) II
OFFICE OF THE DEPUTY COMMISSIONER [INT.]:,
ERANCHIPALAM, KOZHIKODE - 673 005.
2 ASSISTANT COMMISSIONER KVAT
SPECIAL CIRCLE II, COMMERCIAL TAXES,
KOZHIKODE - 673 005.
BY ADVS.
GOVERNMENT PLEADER
OTHER PRESENT:
SMT. THUSHARA JAMES (SR GP)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
01.07.2024, ALONG WITH WP(C).9843/2015, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P (C) Nos.9843 & 9853/2015 -3-
JUDGMENT
These writ petitions have been filed challenging orders imposing
penalty. In W.P (C) No.9843/2015 the assessment year in question is 2004-
05, while in W.P (C) No.9853/2015 the assessment years are 2004-05 and
2005-06. The petitioners in these cases are sister concerns. In W.P (C)
No.9843/2015 the assessment for the year 2004-05 was completed by Ext.P1
order dated 07-01-2010 accepting certain interstate consignment sales.
However, the petitioner in W.P (C) No.9843/2015 was served with a notice
proposing to impose penalty (Ext.P4). The petitioner filed detailed objections
to the proposal for imposing penalty (Ext.P6). One of the contentions taken
by the petitioner was that the transactions which have been examined in the
assessment proceedings and accepted cannot be questioned by the
Intelligence officer while proposing to impose a penalty. In W.P (C)
No.9853/2015 the assessment of the petitioner in that writ petition was
completed for the year 2004-05 by an order dated 27-03-2010. The said order
was rectified by Ext.P1 order dated 20-05-2010. The assessment for the year
2005-06 was completed by Ext.P2 order dated 03-07-2010. The petitioner
was served with notices proposing to impose penalty (Exts.P5 and P6). The
petitioner therefore filed Exts.P8 and P9 replies specifically taking the
contention that the Intelligence Officer cannot question and reopen
transactions which had been approved in regular assessment proceedings.
However, in both the above writ petitions orders imposing penalty were
issued (Ext.P7 in W.P (C) No.9843/2015 and Exts.P10 and P11 in W.P (C)
No.9853/2015) without adverting to the said contention of the petitioner and
without referring to the completion of assessment proceedings for the
relevant years. This, according to the learned counsel appearing for the
petitioners is absolutely incorrect and unsustainable in law.
2. The learned Senior Government Pleader appearing for the
respondents would submit that assessment proceedings and penalty
proceedings are distinct and different and there is no bar in imposing a
penalty even if a certain transactions had been accepted by the Assessing
Authority. It is submitted that the orders of assessment can always be
reopened. It is submitted that if the petitioner is in any manner aggrieved by
the orders imposing penalty, the petitioner ought to have availed alternate
remedies instead of approaching this court under Article 226 of the
Constitution of India.
3. Having heard the learned counsel appearing for the petitioners
and the learned Senior Government Pleader for respondents, I am of the view
that while assessment proceedings and penalty proceedings are no doubt
distinct, when a contention is taken before the officer who initiated penalty
been completed and the transactions which form the basis of the penalty
proceedings have been accepted by the Assessing Officer, the officer imposing
penalty ought to have considered the orders of assessment before proceeding
to impose penalty. The impugned orders in these writ petitions do not reflect
that the contention of the petitioner that the assessment for the relevant years
have been completed by the jurisdictional assessing officer. On this short
ground the impugned orders imposing penalty are liable to be set aside.
Accordingly, these writ petitions are allowed by quashing Ext.P7 in W.P (C)
No.9843/2015 and Exts.P10 and P11 in W.P (C) No.9853/2015. The matters
relating to imposition of penalty for the years in question shall stand restored
to the file of the competent officer who shall pass fresh orders after affording
an opportunity of hearing to the petitioner and also considering the
contention that the assessment for the relevant years had been completed by
the jurisdictional Assessing officer. The competent authority shall pass fresh
orders as directed above within a period of 3 months from the date of receipt
of a certified copy of this judgment. Petitioners shall appear before the
competent authority within a period of two weeks from the date of receipt of a
certified copy of this judgment.
Sd/-
GOPINATH P.
JUDGE
AMG
APPENDIX OF WP(C) 9843/2015
PETITIONER EXHIBITS
EXT.P1: PHOTOCOPY OF ASST. ORDER UNDER THE CST ACT FOR 2004.05
DATED 07.01.2010
EXT.P2: PHOTOCOPY OF ORDER IN WPC NO.12809/2014 DATED 30.7.2014
EXT.P3:COPY OF STATEMENT GIVEN BY SHABEER ON 19.1.2010 AND
7.10.2014
Ext.P3 ENGLISH TRANSLATION OF STATEMENT GIVEN BY SRI. SHABEER ON
19.01.2010 AND ON 30.07.2014
EXT.P4: PHOTOCOPY OF PENALTY NOTICE FOR 2004.05 DATED 17.11.2014
EXT.P5: PHOTOCOPY OF ORDER IN WPC NO.594/2015 DATED 21.1.2015
EXT.P6: PHOTOCOPY OF REPLY DATED 09.2.2015
EXT.P7: PHOTOCOPY OF PENALTY ORDER DATED 28.2.2015
APPENDIX OF WP(C) 9853/2015
PETITIONER EXHIBITS
EXHIBIT P1. PHOTOCOPY OF ASSESSMENT ORDER UNDER CST ACT FOR
2004.05 DATED 20.05.2010.
EXHIBIT P2. PHOTOCOPY OF ASSESSMENT ORDER UNDER CST ACT FOR
2005.06 DATED 30.07.2010.
EXHIBIT P3. PHOTOCOPY OF ORDER IN WP(C)NO.12849/2014 DATED
30.07.2014.
EXHIBIT P4. COPY OF STATEMENT GIVEN BY SRI SHABEER ON 19.01.2010
AND ON 07.10.2014.
EXHIBIT P5. PHOTOCOPY OF PENALTY NOTICE DATED 17.11.2014 FOR
2004.05.
EXHIBIT P6. PHOTOCOPY OF PENALTY NOTICE DATED 17.11.2014 FOR
2005.06.
EXHIBIT P7. PHOTOCOPY OF ORDER IN WP(C)NO.536/2015 DATED
31.01.2015.
EXHIBIT P8. PHOTOCOPY OF REPLY DATED 09.02.2015 TO EXT.P5 PROPOSAL
NOTICE.
EXHIBIT P9. PHOTOCOPY OF REPLY DATED 09.02.2015 TO EXT.P6 PROPOSAL
NOTICE.
EXHIBIT P10. PHOTOCOPY OF PENALTY ORDER DATED 28.02.2015 FOR
2004.05.
EXHIBIT P11. PHOTOCOPY OF PENALTY ORDER DATED 28.02.2015 FOR
2005.06.
