Dismissed

Bhima Jewellers v. Assistant Commissioner

Kerala HC6 Dec 2013WP(C)/29522/2013

Case brief

AI extract

What is this about?

This writ petition challenged an assessment order under Section 22(3) of the Kerala Value Added Tax Act, 2003. The court dismissed the petition, holding that effective alternate remedy exists via appeal under Section 55 of the Act, and disposed of the matter without prejudice to the petitioner's rights.

What did the court decide?

The Writ Petition is disposed of without prejudice to the right of the petitioner to appeal under Section 55 of the Act.

Bhima Jewellers Vs Assistant Commissioner — Cheque Dishonour | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE V.CHITAMBARESH

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FRIDAY, THE 6TH DAY OF DECEMBER 2013/15TH AGRAHAYANA, 1935

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WP(C).No. 29522 of 2013 (M)

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PETITIONER(S):

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BHIMA JEWELLERS MAVOOR ROAD, KOZHIKODE REPRESENTED BY ITS MANAGING PARTNER SRI.BALACHANDRA KIRAN.

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BY ADV. SRI.A.KUMAR

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RESPONDENT(S):

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ASSISTANT COMMISSIONER SPECIAL CIRCLE-I, KOZHIKODE-673 001.

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COMMISSIONER, COMMERCIAL TAXES, THIRUVANANTHAPURAM-695 001.

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THE SECRETARY, TAXES DEPARTMENT, STATE OF KERALA, SECRETARIAT THIRUVANANTHAPURAM-695 001.

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BHIMA JEWELLERY AND DIAMONDS (P) LTD. ABHIMAN TOWER, THANA, KANNUR-673 052.

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BY GOVERNMENT PLEADER SRI. MANOJ P. KUNJACHAN

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06-12-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 29522 of 2013 (M)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1 :	COPY OF THE JUDGMENT IN WPC NO.17375/2013 DTD.11.7.2013.
EXHIBIT P2 :	COPY OF THE JUDGMENT IN WPC NO.24133/2013 DTD.7.10.2013.
EXHIBIT P3 :	COPY OF THE NOTICE FOR THE MONTH OF APRIL 2013 DTD.26.10.2013 (ILLUSTRATIVELY).
EXHIBIT P4 :	COPY OF THE ASSESSMENT ORDER FOR THE MONTH OF APRIL 2013 DTD.8.11.2013.
EXHIBIT P4(a) :	COPY OF THE ASSESSMENT ORDER FOR THE MONTH OF MAY 2013 DTD.8.11.2013.
EXHIBIT P4(b) :	COPY OF THE ASSESSMENT ORDER FOR THE MONTH OF JUNE 2013, DTD.8.11.2013.
EXHIBIT P4(c) :	COPY OF THE ASSESSMENT ORDER FOR THE MONTH OF JULY 2013, DTD.8.11.2013.
EXHIBIT P4(d) :	COPY OF THE ASSESSMENT ORDER FOR THE MONTH OF AUGUST 2013, DTD.8.11.2013.

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RESPONDENT(S)' EXHIBITS : NIL

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/TRUE COPY/

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P.A. TO JUDGE.

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V. CHITAMBARESH, J

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WP(C) NO. 29522 OF 2013

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Dated this the 6^th day of December, 2013

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JUDGMENT

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Ext.P4 order completing the assessment under Section 22 (3) of the Kerala Value Added Tax Act, 2003 is impugned principally on the following two grounds:

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(i) An order of assessment should not

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have been passed keeping the application filed

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for compounding for the year 2013-14 pending.

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(ii) The dictum laid down in Fashion Jewellery Vs. Commercial Tax Officer [(2013) 21 KTR 208 (ker)] is distinguishable on facts.

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The Government Pleader points out that orders were passed as early as on 14.06.2013 in the application for compounding for the year 2013-14. The first respondent assessing officer has in Ext.P4 series orders repelled the attempt to distinguish the decision in Fashion Jewellery Vs.

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WP(C) No.29522/20132

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Commercial Tax Officer by observing as follows:

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“xxxxxxx Their major claim is that their case is a distinguishable one that of the dictum in Fashion Jewellery Vs. Commercial Tax Officer.

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As per Finance Act 2010 Explanation 8 under Section 8 where a dealer who had opted and paid tax under this clause during the previous years with respect to a branch that had remained closed during the whole year 2009-10 for the purpose of determining the compounded tax payable for 2010-11, the tax in respect of that branch shall not be reckoned. However this explanation is restricted to the year 2009-10 and 2010-11 only. None of provisions of section 8 permit a dealer who has opted for payment of tax under section 8(f) of the Act to reduce the tax payable on closure of a branch or shifting of a branch.

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It is true that assessee has taken new registration and paying tax at Kannur for their Kannur Branch. But as per prevailing law if a dealer exercises option u/s.8(f) for the succeeding years, his liability for those years are to be determined based on the tax paid for previous year. The provisions of Section 8(f) do not provide any provision to reduce tax unilaterally on the basis of stoppage or shifting of a branch. That means even if the assessee had shifted their Branch that could not have had any impact on their tax liability under the scheme of compounding.”

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Any further elucidation on the point by me would prejudice the contentions of either parties in a statutory appeal

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WP(C) No.29522/20132

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against Ext.P4 series orders. Whether the dictum in Fashion Jwellery 's case is distinguishable on facts and whether the petitioner can have a proportionate reduction in the tax payable by way of compounding can be better considered by the appellate authority. The petitioner has an effective alternate remedy by way of appeal under Section 55 of the Kerala Value Added Tax Act.

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I dispose of the Writ Petition without prejudice to the right of the petitioner as above.

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V. CHITAMBARESH JUDGE

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ncd

Bhima Jewellers v. Assistant Commissioner

Case brief

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Bhima Jewellers v. Assistant Commissioner

Case brief

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