Kerala High Court
Eswari Balan vs The Assistant Commissioner on 18 February, 2025
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
WP(C) NO. 6667 OF 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
TUESDAY, THE 18TH DAY OF FEBRUARY 2025 / 29TH MAGHA, 1946
WP(C) NO. 6667 OF 2025
PETITIONER :
ESWARI BALAN
AGED 37 YEARS
C/O. BALAN, 25/24, APS NAGAR,
POLLACHI UTHUKADU ROAD, POLLACHI,
COIMBATORE, TAMIL NADU, PIN - 642001
BY ADVS.
SRIKANTH THAMBAN
SRAVAN M.S.
AKHIL RAJ B.
VISHNU VIJAYAN
AMEESHA GEORGE
ARUN RAJ
RESPONDENTS :
1 THE ASSISTANT COMMISSIONER
OFFICE OF THE ASSISTANT COMMISSIONER,
TAXPAYER SERVICES CIRCLE, STATE GOODS AND
SERVICES TAX DEPARTMENT, ALATHUR, PALAKKAD,
KERALA, PIN - 678541
2 STATE OF KERALA
REPRESENTED BY THE SECRETARY, MINISTRY OF FINANCE,
FIRST FLOOR, MAIN BLOCK, SECRETARIAT,
GOVERNMENT OF KERALA, THIRUVANANTHAPURAM,
KERALA, PIN - 695001
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BY SMT.JASMIN M.M., GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 18.02.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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BECHU KURIAN THOMAS, J.
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W.P.(C).No.6667 of 2025
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Dated this the 18th day of February, 2025
JUDGMENT
Petitioner seeks for the following reliefs :-
i. Issue a writ of certiorari, or directions, or Order to Respondent
No.1 to quash the Order in Exhibit P7 and issue a writ of
mandamus, or directions, or Orders to Respondent No.1 to issue
a fresh order in consideration of the request for the revision of
returns, audit report, and the books of accounts being submitted
before the authority.
ii. Issue a writ of mandamus, or direction, or Order to
Respondent No.1 to make the refund of the excess amount of
tax Rs.14,49,152/- being paid to the Petitioner in consideration
of the underlying factors.
iii. Issue a writ of mandamus, or direction, or Order to
Respondent No.1 to produce the document in connection with
the Audit Report for the assessment year 2013-14.
iv. Issue a direction, or Order to Respondent No.1 for expediting
the refund process as prayed.
2. Petitioner claims to be a dealer in live chicken and was an
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assessee under the Kerala Value Added Tax Act, 2003 (for short, 'KVAT
Act'). The business was earlier run by petitioner's father, who expired on
11.12.2018 and thereafter, it is being carried on by the petitioner, who is
the legal heir. By an assessment order dated 24.09.2016, petitioner was
assessed to pay a tax of Rs.1,45,483/-. The said order is not known to
have been challenged. In the meantime, petitioner filed an application
for refund of excess amount paid under Section 89(1) of the KVAT Act by
letter dated 11.02.2025. By communication dated 13.02.2025, the said
application has been rejected pointing out the following:
"The assessment for the year 2013-14 had been completed
on 24.09.2016 by the Assistant Commissioner (Assmt), Special Circle,
Palakkad demanding Rs.1,45,483.00 (Rupees One lakhs forty five
thousand four hundred and eighty three only).
Since the assessment had already been completed and you
have not made any further correspondence in this regard for refund of
amount paid in excess as mentioned in the letter and no specific
directions issued by any of the authorities to sanction the claim made
by you in due course and the time limit for such claim has already been
over your claim can't be accepted by the undersigned".
3. Petitioner challenges the aforesaid communication declining
to refund the excess of tax paid.
4. I have heard Sri.Srikanth Thamban, the learned counsel for
the petitioner as well as Smt.Jasmin M.M., the learned Government
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Pleader.
5. Petitioner bases his claim for refund on an audit report
purported to have been filed in August, 2016. If the petitioner is
aggrieved by the denial of refund as per Ext.P6, there is certainly a
remedy in the form of an appeal as per Section 55 of the KVAT Act. No
exceptional circumstance has been pointed out to compel this Court to
exercise the jurisdiction under Article 226 of the Constitution of India.
In such circumstances, I find no merit in this writ petition and it
is dismissed. However, petitioner's right to prefer an appeal under
Section 55 of the KVAT Act, in accordance with law, shall stand reserved.
Sd/-
BECHU KURIAN THOMAS, JUDGE
RKM
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APPENDIX OF WP(C) 6667/2025
PETITIONER'S EXHIBITS :
Exhibit P1 A TRUE COPY OF THE DEATH CERTIFICATE OF
THE PETITIONER'S FATHER ISSUED BY THE
REGISTRAR OF BIRTH AND DEATH, POLLACHI
MUNICIPALITY DATED 17.06.2024
Exhibit P2 A TRUE COPY OF THE REQUEST FOR THE
REVISION OF THE MONTHLY RETURNS FOR THE
ASSESSMENT YEAR 2013-14 FOR THE MONTH OF
AUGUST 2013 DATED 12.08.2016
Exhibit P3 A TRUE COPY OF THE REQUEST FOR THE
REVISION OF THE MONTHLY RETURNS FOR THE
ASSESSMENT YEAR 2013-14 DATED 27.08.2016
Exhibit P4 A TRUE COPY OF THE AUDIT REPORT IN FORM 13
FILED UNDER SECTION 42 OF THE KVAT ACT AND
RULES DATED 15.09.2016
Exhibit P5 A TRUE COPY OF THE REFUND REQUEST ISSUED
BY THE PETITIONER TO THE ASSISTANT
COMMISSIONER (RESPONDENT NO. 1) DATED
09.01.2025
Exhibit P6 A TRUE COPY OF THE REJECTION LETTER ISSUED
BY RESPONDENT NO. 1 DATED 13.02.2025
Exhibit P7 A TRUE COPY OF THE ASSESSMENT ORDER HAVING
THE ORDER NO. 32090972995/13-14 ISSUED BY
THE ASSISTANT COMMISSIONER (ASSMT),
SPECIAL CIRCLE, COMMERCIAL TAXES, PALAKKAD
FOR THE ASSESSMENT YEAR 2013-14 DATED
24.09.2016
