Kerala High Court
Jullundur Motor Agency (Delhi) Ltd vs State Of Kerala on 24 October, 2024
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
ST.REV. NOS. 11 OF 2021 1
& 3 OF 2022
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
THURSDAY, THE 24TH DAY OF OCTOBER 2024 / 2ND KARTHIKA, 1946
ST.REV. NO. 11 OF 2021
AGAINST THE ORDER/JUDGMENT DATED 25.10.2018 IN TA NO.1
OF 2014 OF STAT ADDITIONAL BENCH, KOTTAYAM
REVISION PETITIONER
JULLUNDUR MOTOR AGENCY (DELHI) LTD.
KALLARACKAL BUILDING, MISS EAST ROAD, KOTTAYAM -
686 001.
BY ADV RAMESH CHERIAN JOHN
RESPONDENTS
1 STATE OF KERALA
REPRESENTED BY THE COMMISSIONER OF STATE GOODS AND
SERVICE TAX DEPARTMENT, FORMERLY COMMISSIONER OF
COMMERCIAL TAXES, THIRUVANANTHAPURAM.
2 THE COMMERCIAL TAX OFFICER
2ND CIRCLE, STATE GOODS AND SERVICE TAX
DEPARTMENT, CIVIL STATION, KOTTAYAM.
SR GP VK SHAMSUDHEEN
THIS SALES TAX REVISION HAVING FINALLY HEARD ON
24.10.2024, ALONG WITH ST.Rev..3/2022, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
ST.REV. NOS. 11 OF 2021 2
& 3 OF 2022
2024:KER:79487
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
THURSDAY, THE 24TH DAY OF OCTOBER 2024 / 2ND KARTHIKA, 1946
ST.REV. NO. 3 OF 2022
AGAINST THE ORDER/JUDGMENT DATED 25.10.2018 IN TA NO.2
OF 2014 OF STAT ADDITIONAL BENCH, KOTTAYAM
REVISION PETITIONER
JULLUNDUR MOTOR AGENCY (DELHI) LTD.
KALLARACKAL BUILDING, MISS EAST ROAD,
KOTTAYAM - 686001.
BY ADV RAMESH CHERIAN JOHN
RESPONDENTS
1 STATE OF KERALA
REPRESENTED BY THE COMMISSIONER OF STATE GOODS AND
SERVICE TAX DEPARTMENT, FORMERLY COMMISSIONER OF
COMMERCIAL TAXES, THIRUVANANTHAPURAM.
2 THE COMMERCIAL TAX OFFICER
2ND CIRCLE, STATE GOODS AND SERVICE TAX
DEPARTMENT, CIVIL STATION, KOTTAYAM.
SR GP VK SHAMSUDHEEN
THIS SALES TAX REVISION HAVING FINALLY HEARD ON
24.10.2024, ALONG WITH ST.Rev..11/2021, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
ST.REV. NOS. 11 OF 2021 3
& 3 OF 2022
2024:KER:79487
ORDER
========
Dr. A.K.Jayasankaran Nambiar, J.
In both these S.T.Revisions preferred by the assessee,
the order of the Kerala General Sales Tax Appellate Tribunal
dated 25.10.2018 in T.A.Nos 1 & 2 of 2014 is impugned. The
questions of law raised in the S.T.Revisions read as follows:
i) Whether on the facts and circumstances of the
case, the Tribunal ought to have found that the very notice
dt.19.03.2013 issued for completing the fast track
assessment u/s 17 D of the KGST Act was barred by
limitation?
ii) Whether on the facts and circumstances of the
case, the Tribunal ought to have found that the order of
assessment dt. 17.04.2013 completed u/s 17D of
the KGST Act is barred by limitation?
iii) Whether on the facts and circumstances of the
case, the Tribunal erred in coming to the finding that the
time limit for completion of pending assessments had been
extended upto 31.03.2014 by the Finance Act 2013 and the
assessment is seen completed on 17.04.2013 and order
seen served on 06.06.2013 which is well within the statutory
period and is not the said finding contrary to law, perverse
and without application of mind when the statutory period
for completion of assessment or reassessment had already
expired?
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iv) Whether on the facts and circumstances of the case,
the finding of the Tribunal that "the contention that the
assessment is hit by infirmity of lack of jurisdiction is not
sustainable" is correct, illegal, arbitrary, perverse and
unsustainable?
v) Whether on the facts and circumstances of the case
the Tribunal ought to have found that since the petitioner
was an assessee coming under the jurisdiction of special
circle, the assessment ought to have been completed by a
team of 3 Assistant Commissioners headed by a Deputy
Commissioner as provided under Section 17 D (2) (b) of the
KGST Act and therefore the assessment was without
authority of law and wholly without jurisdiction?
vi) Whether on the facts and circumstances of the case
the Tribunal was justified in merely relying on a letter filed
by the petitioner/assessee dt. 12.02.2013 to the Commercial
Tax Officer 2nd Circle, Kottayam, to come to the erroneous
and perverse finding that the petitioner was an assessee
coming under the ordinary circle and the contention that the
assessment is hit by infirmity of lack of jurisdiction is not
sustainable?
vii) Whether on the facts and circumstances of the
case the Tribunal after remitting the case back to the
assessing authority was justified in directing the petitioner
to produce the entire evidence / books of accounts within
one month of the date of receipt of the order, failing which
the assessing authority can proceed with the matter and
pass orders without any further notice to the appellant,
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when the entire evidence / books are in the custody of the
department and is not the said finding and direction
contrary to all known practice of judicial procedure,
perverse and arbitrary leading to another assessment based
on mere estimates and guess work?
2. We have heard Sri.Ramesh Cherian John, the
learned counsel for the revision petitioner and
Sri.V.K.Shamsudheen, the learned senior Government Pleader
for the respondent-State.
3. We have been shown a decision of a Division Bench
of this Court in Betty Sebastian v. Assistant Commissioner,
Department of Commercial Taxes and others [2018) 59
GSTR 275], which apparently settles the issue of limitation in
favour of the State. The fallout of the above decision is that
Questions Nos.1 to 6 above would now have to be answered
against the assessee and in favour of the revenue. As regards
Question No.7 however, we find that the issue raised by the
assessee relates to access to his books of accounts, which the
Tribunal in the impugned order had directed the assessing
authority to examine on production of the same by the assessee.
The case of the assessee is that, the books of accounts have
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always been in the custody of the Department and therefore, it
was not possible for him to comply with the direction regarding
the production of books of accounts before the assessing officer.
4. At the time of hearing, Sri.Ramesh Cherian John also
produces before us, an order dated 05.03.2021 of the Appellate
Tribunal in a rectification application that was preferred by the
assessee before the Tribunal. As per the said order, the Tribunal
accepts the submission of the assessee that the books of
accounts are actually in the possession of the Department and
directs the assessing authority to whom the Tribunal had
remanded the issue for fresh consideration to verify the books of
accounts in their possession and return the same to the
assessee after passing the consequential order, based on the
order of the Tribunal impugned in these S.T.Revisions.
5. In the light of the order of the Tribunal in the
rectification application preferred above, we feel that Question
No.7 has to be answered in favour of the assessee and against
the revenue.
6. The S.T.Revisions are thus disposed, by answering
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the questions of law raised as above, with a further direction to
the assessing authority, before whom the matters now stand
posted consequent to the order of the Appellate Tribunal that is
impugned in these S.T.Revisions, to permit the assessee to have
access to the books of accounts which are in their possession at
the time of fresh adjudication of the issues. The assessing
authority shall ensure that the assessee is given sufficient time
to go through the books of accounts or take copies thereof and
make his submissions on the issues that have now been
remanded to the assessing authority for fresh consideration.
Thereafter, the assessing authority shall proceed to afford a
hearing to the assessee and pass orders of the issues. As
directed by the Tribunal in the rectification order mentioned
above, the assessing authority shall return the books of accounts
to the assessee after passing the order.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
SYAM KUMAR V.M.
JUDGE
smm
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PETITIONER ANNEXURES
Annexure A TRUE COPY OF THE ORDER DT. 17/04/2013.
Annexure B TRUE COPY OF THE JUDGMENT DT. 12/08/2013
IN WP(C) NO.17278 OF 2018.
Annexure C TRUE COPY OF THE FORM OF APPEAL AND
GROUNDS OF APPEAL DT. 04/01/2014 FOR THE
AY 2003-04.
Annexure D TRUE COPY OF THE ARGUMENT NOTE (WITHOUT
THE ANNEXUES MENTIONED THEREIN) ALONG
WITH THE REPLY TO THE PRE-ASSESSMENT
NOTICE.
Annexure E TRUE COPY OF THE JUDGMENT IN WP( C)
NO.6587 OF 2020.
Annexure F TRUE COPY OF THE NOTICE DT. 09/11/2005
ISSUED BY THE ASSISTANT COMMISSIONER,
KVAT, SPECIAL CIRCLE I, KOZHIKODE DURING
THE PERIOD 2005-06.
Annexure G TRUE COPY OF THE REPLY FILED TO THE SAID
NOTICE DT. 15/11/2005.
Annexure H TRUE COPY OF THE COVERING LETTER ALONG
WITH COPY OF THE CHEQUE DT. 10/02/2006
ISSUED TO THE ASSISTANT COMMISSIONER,
KVAT, SPECIAL CIRCLE, KOZHIKODE.
Annexure I TRUE COPY OF ONE APPLICATION REQUESTING
THE AUTHORITIES TO FURNISH THE DOCUMENTS
SEIZED FROM THE PETITIONER.
Annexure J TRUE COPY OF THE ORDER OF THE TRIBUNAL
DT. 25/10/2018 WHICH IS A COMMON ORDER
FOR THE AYS 2003-04 AND 2004-05.
Annexure K TRUE COPY OF THE RECTIFICATION
APPLICATION FILED BEFORE THE KERALA
SALES TAX, KVAT AND AGRICULTURAL INCOME
TAX APPELLATE TRIBUNAL, ADDITIONAL
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BENCH, KOTTAYAM.
Annexure L TRUE COPY OF THE REMINDER DT. 28/12/2018
FILED BEFORE THE ASSISTANT SECRETARY OF
THE TRIBUNAL, KOTTAYAM, REQUESTING TO
POST THE CASE.
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PETITIONER ANNEXURES
Annexure A TRUE COPY OF THE ORDER OF PENALTY DATED
17.04.2013 IMPOSED AND DOCUMENTS SEIZED
PURSUANT TO AN INSPECTION CONDUCTED BY
AN INSPECTION TEAM AT THE OFFICE
PREMISES OF THE PETITIONER AT KOZHIKODE
AND KOTTAYAM.
Annexure A1 TRUE COPY OF THE NOTICE DATED 19.03.2013
ISSUED U/S. 17D OF THE KGST ACT.
Annexure B TRUE COPY OF THE JUDGMENT OF HON'BLE
HIGH COURT OF KERALA DATED 12.08.2013 IN
WP(C) NO. 17278 OF 2018.
Annexure C FORM OF APPEAL AND GROUNDS OF APPEAL
DATED 30.12.2013 FILED BY THE APPELLANT
FOR THE AY 2004-05.
Annexure D TRUE COPY OF THE ARGUMENT NOTE (WITHOUT
THE ANNEXURE MENTIONED THEREIN) ALONG
WITH THE REPLY TO PRE-ASSESSMENT NOTICE
FILED BY THE APPELLANT.
Annexure E TRUE COPY OF THE JUDGMENT OF HON'BLE
HIGH COURT OF KERALA DATED 16.03.2020 IN
WP(C)NO.6587 OF 2020.
Annexure F TRUE COPY OF THE NOTICE DATED 09.11.2005
ISSUED BY THE ASSISTANT COMMISSIONER,
KVAT, SPECIAL CIRCLE -I, KOZHIKODE
DURING THE PERIOD 2005-06
Annexure G TRUE COPY OF THE REPLY TO THE NOTICE
DATED 15.11.2005 FILED BY THE APPELLANT.
Annexure H TRUE COPY OF THE COVERING LETTER ALONG
WITH COPY OF THE CHEQUE DATED 10.02.2006
ISSUED TO THE ASSISTANT COMMISSIONER,
KVAT, SPECIAL CIRCLE, KOZHIKODE.
Annexure I TRUE COPY OF THE APPLICATION REQUESTING
THE AUTHORITIES TO FURNISH THE DOCUMENTS
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SEIZED FROM THE PETITIONER.
Annexure J TRUE COPY OF THE ORDER OF THE TRIBUNAL
DATED 25.10.2018 WHICH IS A COMMON ORDER
FOR THE AY S 2003-04 AND 2004-05.
Annexure K TRUE COPY OF THE RECTIFICATION
APPLICATION FILED BY THE APPELLANT
BEFORE THE KERALA SALES TAX, KAVAT AND
AGRICULTURAL INCOME TAX APPELLATE
TRIBUNAL, ADDITIONAL BENCH, KOTTAYAM.
Annexure L TRUE COPY OF THE REMINDER DATED
28.12.2018 FILED BY THE APPELLANT BEFORE
THE ASSISTANT SECRETARY OF THE TRIBUNAL,
KOTTAYAM, REQUESTING TO POST THE CASE.
