M/S. N.R. Patel & Co vs The Assistant Commissioner
2024 Latest Caselaw 8700 Ker

Kerala High Court

M/S. N.R. Patel & Co vs The Assistant Commissioner on 27 March, 2024

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 27TH DAY OF MARCH 2024 / 7TH CHAITHRA, 1946
                        WP(C) NO. 915 OF 2024
PETITIONER:

          M/S. N.R. PATEL & CO.
          AGED 45 YEARS
          PRESENTLY NRP PROJECTS (P) LTD., DESABANDHU PLAZA, 47,
          WHITES ROAD, CHENNAI, TAMILNADU, REPRESENTED BY
          AUTHORISED SIGNATORY, A,S,RAJESH, ASSISTANT GENERAL
          MANAGER - FINANCE, PIN - 600014
          BY ADVS.
          SIVANKUTTY S.
          S.SURESH BABU (CHERUNNIYOOR)
          VANDANA RAVI


RESPONDENTS:

    1     THE ASSISTANT COMMISSIONER,
          STATE GST DEPARTMENT, TAX PAYER SERVICE CIRCLE,
          KAZHAKKOOTTAM, TAX TOWER, KARAMANA, THIRUVANANTHAPURAM,
          PIN - 695002
    2     THE JOINT COMMISSIONER,
          TAX PAYER SERVICE, STATE GST DEPARTMENT, TAX
          TOWER,KARAMANA, THIRUVANANTHAPURAM, PIN - 695002
    3     THE COMMISSIONER,
          STATE GST DEPARTMENT, TAX TOWER, KARAMANA,
          THIRUVANANTHAPURAM, PIN - 695002


          SMT. JASMIN M.M.-GP



     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
27.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P(C) No.915 of 2024
                                    2


                            JUDGMENT

Dated this the 27th day of March, 2024

The petitioner is a registered dealer under the

provisions of the Kerala Value Added Tax Act, 2003,

and is engaged in execution of contract awarded by the

Bharat Petroleum Company Ltd. The assessment for

the years from 2008 - 2009 to 2011-2012 were

completed and the amount found to be paid in excess

for the years 2008-2009 to 2010-2011 were carry

forwarded to the year 2011-2012. An amount of Rs.

20,11,109/- was found to have been paid in excess as

per the order dated 22.08.2014 for the assessment year

2011-12. The assessee has filed a representation dated

13.01.2015 before the assessing authority for refund of

the said amount and thereafter, a writ petition was filed

before this Court, W.P(C.) No.7071/2015 seeking a

direction to sanction refund amount with interest. This

Court vide judgment dated 31.03.2015, disposed of the

said writ petition, with direction to the assessing

authority to consider and pass orders on the

representation of the petitioner dated 13.01.2015

within a period of two months from the date of the

order, this Court also directed the 1st respondent to

compute the total refund amount due to the petitioner

with upto-date interest as provided under Section 89 of

the KVAT Act.

2. During the pendency of the said writ petition, a

notice dated 09.04.2015, under Section 25 of the KVAT

Act, was served on the petitioner company, proposing

the complete assessment for the assessment year 2012-

2013. A notice under Section 95 was also issued on

26.06.2015. Even though the notices were served on

the petitioner, no response came from the petitioner to

these notices. Later on some other turnover,

suppression was noticed and revised notice dated

29.07.2015 was issued to the petitioner. Despite the

direction issued by the High Court, the petitioner

neither filed a reply nor produced the books of account

in pursuance to the notices issued to the petitioner. The

petitioner also did not file annual returns of statements

before the assessing authority.

3. As the petitioner did not produce the documents

and not filed reply to the notice, an exparte order of the

assessment for the year 2012-2013 was passed, in

which it was held that an amount of Rs.19,47,790/- was

found due after adjusting the refund amount of

Rs.23,52,998/- for the year 2011-2012. Since the

amount to be refunded for the year 2011-2012 with

interest was given credit for the year 2012-2013, the

direction of the High Court in its judgment dated

31.03.2015 was complied with in respect of the

assessment year 2011-2012. Later on, it was found that

some mistake in calculating the interest on refund had

occurred for the assessment year 2011-12 and

therefore, the order for the assessment year 2012-13

was rectified by which an amount of Rs.21,51,887/- was

given credit and balance amount of Rs.22,18,689/- was

found due for the year 2012-13 as per the rectified

order dated 16.10.2015.

4. In the meantime, Deputy Commissioner

Thiruvananthapuram suo-motu proposed the

cancellation of the assessment order for the year 2011-

12 on finding certain irregularities in the assessment

order. Thereafter, the assessment order was completed

and the rectified assessment order was passed on

25.11.2016 creating a demand of Rs.65,79,113/- and

cess of Rs.65,611/-.

5. The petitioner thereafter filed W.P(C)

No.31926/2016 and Contempt Case No.67/2016 which

were disposed of as per Ext.P12 judgment. On

consideration of the affidavit filed on behalf of the

alleged contemnor, the contempt and writ petitions

were closed by the judgment dated 18.07.2018 with the

observation "If at all the petitioner has any further

grievance regarding the computation of interest or the

manner in which the adjustments have been made, it

would always be open for the petitioner to challenge

the same in appropriate proceedings".

6. In view of the aforesaid observation made by this

Court in its judgment dated 18.07.2018, the petitioner

filed appeal against the revised assessment order. The

appellate authority has modified the assessment order

vide order dated 20.06.2022 for the Assessment year

2011-12 by Ext.P15 and P16 separate orders.

Subsequently, the refund has been ordered as Ext.P17

granting an amount of Rs.90,29,252/-. On further

verification, it came to light that there was some error

in the calculation of the interest portion. Hence,

Ext.P18 notice was issued under Section 56 on

29.07.2023. After hearing the petitioner, a fresh order

on Ext.P20 was issued on 21.01.2023 directing the

assessing authority to re-work the interest applicable

as per the Statute. Subsequently, after issuing Ext.P21

notice and considering the aforesaid reply filed by the

petitioner in Ext.P23 order dated 04.09.2023 was

issued and an order of refund was limited to

Rs.49,96,500/-.

7. If the petitioner is aggrieved by the said order,

the remedy lies elsewhere under the Statute itself. This

Court cannot enter into the factual dispute as it is for

the petitioner to approach the Appellate Authority

against the said order if he is not satisfied with the

order passed for refund in the impugned order. This

court is not an appellate authority under the provisions

of the KGST Act to examine the merit of the

assessment/refund order. The appropriate remedy

would be to approach the authority under the Statute

itself and not invoke the public law remedy by filing the

writ petition.

Thus, I find no substance in this writ petition which

is hereby dismissed. If the petitioner files the appeal,

the time consumed in prosecuting the writ petition

shall be taken into consideration while considering the

application for condoning the delay.

Sd/-

DINESH KUMAR SINGH JUDGE AP

APPENDIX OF WP(C) 915/2024

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ASSESSMENT ORDER NO.

32011397864 DATED 22-8-2014 FOR 2008-09, ISSUED BY THE 1ST RESPONDENT.

Exhibit P1(a) TRUE COPY OF THE ASSESSMENT ORDER NO.

32011397864 DATED 22-8-2014 FOR 2009-10, ISSUED BY THE 1ST RESPONDENT.

Exhibit P1(b) TRUE COPY OF THE ASSESSMENT ORDER NO.

32011397864 DATED 23-8-2014 FOR 2010-11, ISSUED BY THE 1ST RESPONDENT.

Exhibit P1(c) TRUE COPY OF THE ASSESSMENT ORDER NO.

32011397864 DATED 22-8-2014 FOR 2008-09, ISSUED BY THE 1ST RESPONDENT.

Exhibit P2 TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WPC NO.7071/2015 DATED 31-3-2015.

Exhibit P3 TRUE COPY OF REFUND PROCEEDINGS NO.

32011397864 DATED 3-8-2015 OF ASSESSING AUTHORITY - 1ST RESPONDENT.

Exhibit P4 TRUE COPY OF THE ASSESSMENT ORDER NO.

32011397864 DATED 21-8-2015 OF THE ASSESSING AUTHORITY - 1ST RESPONDENT FOR 2012-13.

Exhibit P5 TRUE COPY OF THE RECTIFIED REFUND PROCEEDINGS NO. 32011397864/11-12 DATED 14-

                    9-2015     OF    ASSESSING     AUTHORITY     1ST
                    RESPONDENT.
Exhibit P6          TRUE    COPY    OF    THE    RECTIFIED    REFUND

PROCEEDINGS NO. 32011397864/12-13 DATED 16- 10-2015 OF ASSESSING AUTHORITY 1ST RESPONDENT.

Exhibit P7 TRUE COPY OF THE REVISION ORDER NO.

B1.643/16 DATED 21-6-2016 OF THE DEPUTY COMMISSIONER, THIRUVANANTHAPURAM. Exhibit P8 TRUE COPY OF THE REVISED ASSESSMENT ORDER NO.32011397864 DATED 25-11-2016 OF THE ASSESSING AUTHORITY - 1ST RESPONDENT FOR 2011-12.

Exhibit P9 TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN COC NO. 67 OF 2016 AND WPC 31926/2015 DATED 27-6-2018.

Exhibit P10 TRUE COPY OF THE REFUND/ADJUSTMENT PROCEEDINGS NO. 32011397864/2011-12 DATED 5-7-2018 OF THE ASSESSING AUTHORITY-1ST RESPONDENT.

Exhibit P11 TRUE COPY OF THE REFUND/ADJUSTMENT PROCEEDINGS NO. 32011397864/2011-12 DATED 13-7-2018 OF THE 1ST RESPONDENT-ASSESSING AUTHORITY.

Exhibit P12 TRUE COPY OF THE JUDGMENT IN WPC NO.

31926/2015 DATED 18-7-2018 OF THIS HONOURABLE COURT.

Exhibit P13 TRUE COPY OF THE JUDGMENT IN W.A. NO.

2025/2018 DATED 8-2-2022 OF THIS HONOURABLE COURT.

Exhibit P14 TRUE COPY OF THE APPELLATE ORDER NO.

K.91/22 & K.92/22 DATED 20-6-2022 OF THE JOINT COMMISSIONER (APPEALS), THIRUVANANTHAPURAM.

Exhibit P15 TRUE COPY OF THE MODIFIED ASSESSMENT ORDER NO. 32011397864/2011-12 DATED 20-12-2022 OF THE ASSESSING AUTHORITY-1ST RESPONDENT. Exhibit P16 TRUE COPY OF THE MODIFIED ASSESSMENT ORDER NO. 32011397864/2012-13 DATED 20-12-2022 OF THE ASSESSING AUTHORITY - 1ST RESPONDENT. Exhibit P17 TRUE COPY OF THE REFUND ORDER NO.

32011397864/2012-13 DATED 4-1-2023 OF THE ASSESSING AUTHORITY - 1ST RESPONDENT. Exhibit P17(a) TRUE COPY OF THE REFUND ORDER NO.

32011397864/2012-13 DATED 9-1-2023 OF THE ASSESSING AUTHORITY - 1ST RESPONDENT. Exhibit P18 TRUE COPY OF THE SUO-MOTO REVISION NOTICE NO.B2. 32011397864 /SUO-MOTO/2023 DATED 29- 7-2023 OF THE JOINT COMMISSIONER - 2ND RESPONDENT.

Exhibit P19 TRUE COPY OF THE NOTES DATED 10-8-2023 FILED AGAINST EXT.P18 NOTICE OF THE 2ND RESPONDENT.

Exhibit P20 TRUE COPY OF THE SUO-MOTO REVISION ORDER NO. JC.TPS/B2.32011397864/SUO-MOTO/2023 DATED 21-8-2023 OF THE 2ND RESPONDENT - JOINT COMMISSIONER.

Exhibit P21 TRUE COPY OF THE NOTICE NO.

32011397864/2011-12 & 2012-13 DATED 26-8- 2023 U/S 89 OF THE ASSESSING AUTHORITY-1ST RESPONDENT.

Exhibit P22 TRUE COPY OF THE WRITTEN OBJECTIONS DATED

2-9-2023 FILED BY THE PETITIONER AGAINST EXT.P21 NOTICE OF THE ASSESSING AUTHORITY. Exhibit P23 TRUE COPY OF THE REVISED REFUND ORDER NO.

TPSC 32011397864/12-13/KZTM 2023 DATED 4-9- 2023 OF THE ASSESSING AUTHORITY-1ST RESPONDENT.

Exhibit 23(a) TRUE COPY OF THE REVISED REFUND ORDER NO.

TPSC 32011397864/12-13/KSTM DATED 5-9-2023 OF THE ASSESSING AUTHORITY.

RESPONDENT EXHIBITS Exhibit R2 (a) True copy of the notice dated 09.04.2015 Exhibit R2 (b) True copy of the notice dated 26.06.2015 Exhibit R2 (c) True copy of the notice dated 29.07.2015